The Research On The Legal Application Of The Tutela Testamentaria System In China

Family stability is the basis of social stability and he improvement of the level of family governance is also an important embodiment of the modernization of national governance.The general rule of civil law maintains a harmonious and orderly family life,such as tutela testamentaria?guardianship ?Temporary curator system and the revocation system of the guardian.The twenty-ninth article in the general rule of the civil law is about the regulations of the guardianship system of the tutela testamentaria.The guardian's guardian may appoint a guardian by a will.This provision fills a loophole in the rules of the general provisions of the civil law.It makes the tutela testamentaria become one of the legal ways of the guardian of our country.Although the tutela testamentaria system has been established as one of the legal methods determined by the guardian,only by the provisions of the twenty-ninth article of the general law of the civil law still can not solve the disputes about tutela testamentaria in practice.And in the construction of the legal system the twenty-ninth article of the general principles of civil law tends to be principled.Many specific rules have no legal provisions and no judicial interpretation.Lacking of maneuverability in real life.So we should make a careful analysis and study of the testamentary guardianship system to protection of the lawful rights and interests of the Guardians.Parents are most concerned about the healthy growth of their children and the protection of their rights and interests.Parents should be allowed to choose their most trustworthy and guardians who are most beneficial to their children when they are unable to continue to perform guardianship due to death.The testamentary guardianship system helps to meet the needs of some parents in practice to make guardianship arrangements for the children in their life for their guardianship,respecting for parents' parental rights to better protect the interests of the Guardians.Legislation should be further approved.Therefore,this article intends to explore the legal application of the tutela testamentaria from the following angles:Part one,By combing the basic situation of the testamentary guardianship system,clear the concept and legislative purpose of the testamentary guardianship system,through the analysis of its theoretical development and the changes in the legislative level,summarize the lack of the application and the applicable rules of the testamentary guardianship system at the present stage.Part two,From the perspective of comparative law,the system of testamentary guardianship is investigated,the homosexuality of each country in the wills monitoring system is analyzed,and combined with the social status and legal environment of our country,some principles of our country's will guardianship are determined,namely,the principle of maximizing the interests of the guardians,the principle of the intention of respecting the guardian and the autonomy of the guardian,and the autonomy of the meaning.Principles,public power intervention principles and so on.Part three,The system of testamentary guardianship under different guardianship objects is analyzed,with the difference between the parents' right of appointment in two cases of artificial insemination and "dead belly" when minors are the guardianship,and the legal guardianship of the spouse and the conflict between the guardianship and the will guardianship when the adult is the guardianship.The detailed analysis and discussion of it make the application of the testamentary guardianship system more practical in practice.Part four,To clarify the applicable rules of the testamentary guardianship system,make suggestions on the operating mechanism of the testamentary guardianship system,clarify the validity and priority of the will and the rules for the determination of the parents and the designated people,in order to perfect our country's will guardianship system,and provide the legal basis for various cases of the probate in practice.