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Study On Adult Self-Determined Guardianship Contract

Posted on:2017-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:A H JiangFull Text:PDF
GTID:2336330485998208Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Since the Law on Protection the Rights and Interests of Seniors,the self-determined guardianship for the adults has been established in our country, which conforming to the historical development trend of international human rights protection, meeting the requirements of the old group, and making up for the blank of the adult guardianship system in China. However, as a comprehensive law which dedicated to improving the welfare of the elderly, limited by the legislative purpose,the range of applicable object and the completeness of the system have the congenital defects. The basic framework of self-determined guardianship has been built, but it is still very poor, and public power intervention is not enough, reflected in the lack of rules on implementation and procedure, greatly influenced the feasibility and effectiveness. In addition, the way that regarding the declaration of the capacity of civil conduct as the starting procedure, leading to narrowing the scope of users, and neglecting the diversity needs.Apart from the abstract, there are four parts in the main body.In the first part, analysis the current provisions of the self-determined guardianship in China and point out its defects, including: The range of client is narrow; The judgment standard of the effect of the contract is not reasonable; Public power intervention is not enough; Equipped with insufficient security program, and lack the guardianship supervision system.In the second part, introduce the theoretical basis of adult self-determined guardianship contract, including three levels: Firstly, concerned on the relationship between the self-determined guardianship system and the civil law basic principle, self-determined guardianship system is the product of private law autonomy, embodies the concept of protecting the weak; Secondly, the development of modern human rights movement has brought the innovation of the modern concept of guardianship, the concept,as normalization should be as the guide; Finally, the development of the theory of behavior ability shows that beyond capacity of will, the behavior ability also will be influenced by other factors. Besides the mental disability and mental disorder, people who lacking the ability of control and the ability to perform should be protected.In the third part, study the establishment of the contract, which is one of the focuses in the study of this article. Analysis the contract elements during the stage of establishment: Regard being adult and having a corresponding meaning ability as the eligibility criteria; The content of the contract should follow the party autonomy, but there should be the terms of the essential clauses; Written form shall be adopted, and two or more than two people who have no interests as witness.In the last part, study the effectiveness of the contract, is also a research focus. Use factual investigation, put ”lack of transaction processing capacity" as the way, on the scope of influence factors,including mean ability, the ability to control and ability to act; The court appointed guardianship supervisor as procedural requirements. The scope of the effectiveness of the contract including himself, the guardian and the supervisor.
Keywords/Search Tags:self-determined guardianship, self-determined guardianship contract, capacity of act, guardianship and supervision
PDF Full Text Request
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