Study On China's Temporary Guardianship System

The general principles of civil law,adopted at the fifth meeting of the 12th National People's Congress on March 15,2017,put forward the legal concept of temporary guardianship and established the basic legal system of China's interim supervision.Temporary guardianship system refers to the ward in a poor without a guardian or guardians guardianship cases,such as the main body of prescribed by law in a certain period of a guardian of the person,property and other lawful rights and interests of guardianship system.Article 31 of the general provisions of civil law stipulates that when the legal rights and interests of the guardian are unprotected,the residents' committee,the villagers' committee,the relevant organizations and civil affairs departments stipulated by the law shall act as temporary guardians.Article 36 after the disqualification of the guardian,the guardian shall arrange the necessary temporary guardianship measures.These regulations are the innovation and development of the guardianship system,which is an important institutional guarantee to strengthen the protection of the legal rights and interests of the guardian.However,China's general principles of civil law and relevant laws and regulations do not make specific provisions on the order,responsibility,interim monitoring period and interim monitoring measures of the temporary guardianship,and the subject of the temporary guardianship is not suitable or comprehensive,and the temporary guardianship system is not operable.As a new legal system to protect the legal rights and interests of guardians,the temporary guardianship system needs further research and exploration from theory and practice.This thesis first elaborates the basic concept of temporary guardianship,the relationship between temporary guardianship and guardianship,and the type of temporary guardianship,which is the logical starting point and theoretical precondition for constructing the temporary guardianship system.The theoretical basis of China's temporary guardianship system is that the guardianship tends to be public law,the interests of the guardian,the rights and the restriction of power.The development of the temporary guardianship system and the realistic demand indicate its historical inevitability.The major countries outside the region are similar to the successful experience of the temporary guardianship system in China.For example,it is worth studying for the protection system of the guardian especially the minor,the public law of the guardianship system of minors and the degree of social participation.Aiming at the shortage of the temporary guardianship system in China,the paper puts forward some Suggestions.Improve the subject of temporary guardianship,define the scope,order and condition of the subject of temporary guardianship;To ensure that the caretaker's duties are properly discharged during the period of custody;Strengthen the connection between the temporary guardianship system and the guardianship system to ensure the maximization of the guardian's interests;To increase the social participation of the temporary guardianship,clarify the responsibilities of the state's custody,strengthen the supervision of temporary guardianship,and form a full protection of the legal rights and interests of the guardian.