On The Perfection Of Adult Guardianship System From The Perspective Of Civil Code Codification

Through looking back on the trajectory of history,we can always have a more profound understanding of today.The guardianship and protection system of ancient Rome laid a solid foundation for the establishment of adult guardianship system.In the 19 th century,many countries within civil law system learned the essence and discarded the dregs of guardianship and protection system of ancient Rome,forming the modern guardianship system with interdiction declaration as the core.Because of the emphasis on transaction security and excessive deprivation or the restriction of the guardian's rights,modern guardianship system was highly criticized in the subsequent social development.In the 20 th century,with the development of population aging and international human rights movement,"respect for self-determination" and "normalization of life" were regarded as the new concept of adult guardianship system.Thus,various countries in the world successively established modern adult guardianship system with intended guardianship as the core and legal guardianship playing the subsidiary role,which is supported by the measures of monitoring and supervision system.The evolution of the adult guardianship system abroad supplies the adult guardianship system of country with the necessity and direction for reform.China's current law on the regulation of adult guardianship is fragmented,and systematic institutional construction has not yet been formed.Thus,content for such system is quite insufficient.For instance,the establishment of the guardianship system still rigidly adhere to system about being short of civil capacity,the applicable targets are limited to mental patients(dementia),measures for protection can hardly meet the growing demands of the person under guardianship,both national guardianship and social guardianship are in short supply,and legislation of intended guardianship is short of operability.No matter the concept for legislation of adult guardianship or the methods choice for guardianship are both far from the contemporary development of adult guardianship system in the world.The social problems,such as "empty-nest elderly","elderly people living alone" and "the rights and interests infringement of the vulnerable groups",are the direct manifestations of the defects shown by the adult guardianship system in our country.It also reflects that reforming the current guardianship system and constructing perfect adult guardianship is in urgent demand when facing the social reality in our country.As the "General Principles of the Civil Law of the People's Republic of China" is being compiled,the voice of perfecting the adult guardianship system in the society is becoming more and more intense.The experience of advanced system abroad,the "Draft of the General Principles of Civil Law",useful references provided by experts,and the compilation of general rules provide an opportunity for the improvement of adult guardianship system in our country.The overall design of the adult guardianship system in China should be carried out from the following four perspectives: "who to be guarded,who'd guard,how to guard and how to ensure the guardianship".Firstly,the logic relationship with the system of disposing capacity should be relieved,and the application scope of adult guardianship should be expanded;Secondly,clarify the duties and rights of the guardian,strengthen the construction of public social guardianship,and solve the problem "the absence of the qualified guardian";Thirdly,according to the guardian's differentiated ability in dealing relevant problems,the legal guardianship system with three types of protection measures as the main content shall be established so as to meet the guardian's different levels of needs.Perfect the intended guardianship system,and give the guardian the freedom to realize personal willingness;Fourthly,establish the dual monitoring mechanism supervisors and supervisory agencies to ensure the effective operation of guardianship system,clarify the guardian's duties,and set up monitoring institutions for guardianship and regularly visit system,so that the problems in the running of the guardianship system can be prevented,detected and solved in advance.