Research On The Construction Of Adult Guardianship Non-litigation Procedure

In our country,there are no civil procedures specifically applicable to the trial of adult guardianship cases.In judicial practice,the judges usually hear these cases in the light of special procedures under the provisions of "The Interpretation of the Supreme People's Court on the Implementation of General Principles of the Civil Law of the People's Republic of China".These rules are too principled to provide explicit directions for the specific procedural issues that may be involved in adult guardianship cases.In practice,the operability is poor,and it can't provide perfect procedural guarantees for the operation of adult guardianship substantive system.Instead,it becomes an obstacle to the application of the substantive system.The modern adult guardianship system has evolved into a system of protection and assistance for adults who are unable to handle their own affairs independently.The trial of adult guardianship cases is mainly focused on the future,and it has a strong sense of social public welfare.So,it requires the full intervention of public power in the formation phase of the guardianship relations.Precisely because the trial procedure of the adult guardianship cases is very consistent with the principles and characteristics of the non-litigation procedures,therefore,using the principles of non-litigation procedure to construct an exclusive procedure--adult guardianship non-litigation procedure--for hearing adult guardianship cases is an inevitable requirement for the transformation of adult guardianship system in China.Aiming at the problems exist in the current legislation and judicial practice,this paper sums up the legislative experience of foreign countries,and then puts forward some proposals for the construction of adult guardianship non-litigation procedure from the dual perspectives of both substantive law and procedural law,such as adopting strict proof standard and functional evaluation model,guiding the judges to expand the application of limited guardianship,establishing the procedure participation rules,and identifying the procedural subject status of the incompetents.It is hoped that this paper will be of benefit to the judicial practice of adult guardianship cases while providing procedural guarantee for the incompetents to use adult guardianship system.