The Establishment Of The Elderly Care System

Guardianship,at the earliest,appears in the fifth table(inheritance and guardianship) of “Law of the Twelve Tables” in ancient Roman. Its initial purpose is to safeguard the interests of the family. Later, with the social development, it has turned to maintenance of the interest of the person under guardianship.In our country,there are many kinds of guardianship present. According to the objects of guardianship,it can be divided into guardianship of minors and adult mental patient care. According to the causes of guardianship, it can be divided into legal custody and designated care. Among the relevant provisions of “ General principles of the civil law “, involving elderly guardianship is almost no. The breakthrough about the elderly Guardian in the existing laws is the Article 26 of the first paragraph of provisions of “ elderly rights and interests protection law “,which has taken effect in July 2013. However, the provisions still exist many deficiencies, such as: have what qualified individuals can be the guardian of the elderly;as the guardian of the elderly, he or she enjoys what rights and bears what responsibilities;when does the guardianship supervisor start to fulfill the oversight responsibilities,etc.There are no detailed provisions in the law, so it is still very difficult to operate in practice.And since the 60 s of the 20 th century, foreign countries have successively established the guardianship system, such as: as representatives of Anglo-American law system, Britain and United States have established "the lasting power of attorney system", as representatives of the continental law system, Germany has established the "adult care system", Japan has established the "arbitrary guardianship system".The demographic transition of low birth rate and low mortality and the perform of the family planning policy in recent years, the aging population situation is becoming more and more serious. And fast-paced economic development bring the population of frequent flow,it is difficult for more and more children to do the best of duty of guardianship for parents, coupled with the phenomenon of elder abuse and deceive the old is becoming more and more common,the legitimate rights and interests of the elderly can not get reasonable protection. Therefore, to establish the elderly guardianship system has a certain urgency and necessity in our country.This article is based on these, and it adopts the comparative method to discuss how to construct the elderly guardianship system in our country. The article is composed of four parts, each chapter constitute a part: the first part is about the necessity and feasibility and the meaning, the basic frame of the elderly guardianship system and the introduction of the difference between it and other systems; the second part is about the elaboration of the Intended guardianship contract. The third part is about the discussion of the supervision system of guardianship; the fourth part is about the discussion of the responsibility of the guardian.The first part is about the necessity and feasibility and the meaning, the basic frame of the elderly guardianship system and the introduction of the difference between it and other systems.The necessity mainly introduce from two aspects of the legal provisions and practical demand:among the existing laws, the provisions about the elderly guardianship is almost no. With the accelerated aging, the proportion of the elderly population is higher and higher, coupled with the emergence of fraud in the elderly,the phenomenon of abuse of older people is increasingly serious, the elderly people’s legitimate rights and interests can not be guaranteed. Feasibility is mainly to discuss from its theoretical basis and practical basis.About the meaning of elderly guardianship system,it is completed on the basis of comparing with the definitions of foreign countries and combining with Article 26 of “ elderly rights and interests protection law “. The intended guardianship contract and the guardianship supervision system,which is based on the contract,are the two basic framework of the elderly guardianship system. They are the two key parts in this paper also, and to be discussed respectively. As for the difference between the elderly guardianship system and other related systems, which are mainly about the entrust- agent system and the legacy support agreement.The second part is about the intended guardianship contract,which is one of the basic framework of the guardianship system.This part is mainly discuss from the basic principle, establishment and effect, subject, content and other aspects of the intended guardianship contract. As a contract, the intended guardianship contract has its own common place, but also has its own special place.First of all, the basic principles of this kind of contract include the principle of presumption of competence, the least restrictive principle and the principle of the best interest and the principle of good faith and the principle of public order and good morals. The first three principles are unique.Secondly,the establishment and effect of the intended guardianship contract.The establishment of the contract is similar to the general contract, namely both mean reached consistent, but it is not a valid entry into force. The contract is attached to conditional contract, only when the conditions are ripe to enter into force. Therefore, the intended guardianship contract’s effective time is that the elderly are unable to deal with their own affairs, this is also the time for the guardian and the guardianship supervisor to perform their duties.Furthermore, the subjects of the intended guardianship contract. As one of the main body of the contract must be the elderly,namely the trustor, but not all the elderly.The elderly must be unable to deal with their own affairs, that means the lack of mean capacity. And the other subject of the contract is the guardian, namely the trustee, is detail part. This paper mainly discusses from the qualification, scope, tenure and dismissal or removal of the guardian.Finally, the content of the intended guardianship contract,which is similar to the provisions of general contract.It mainly provides the rights and obligations of both parties in the contract, but the specific content is not the same. The authority and responsibilities of the trustee is the main part of the discussion.The third part is the other basic framework of the guardianship system, that is, the monitoring system.Domestic scholars believe that the supervision system is the public security,which intends to set the intended guardianship contrac as the basis,namely the public power supervision system,which means to select and appoint a supervise by the public authority. This is similar to the relevant practice of the foreign countries, such as Japan, according to the application, the family court can select the guardianship supervisor.This paper mainly discusses from following aspects about its necessity, produce and its authority and duties.The fourth part is about the responsibilities of the guardian,which mainly including to the ward’s tort liability and to the third party’s tort liability. Here is the need to focus on the discussion of the tort liability to the third party,namely the tort liability to the third person that caused by the ward.Here through the comparison of the current study of the existence of several viewpoints, and combining with the actual situation, summed up some of myself understanding.The concluding part of the article reiterated the necessity and practical significance of constructing the elderly guardianship system in our country at present. It is better to explian the rationality of the construction of this system for the basis of the existence of such a reality needs.