Research On The Revocation System Of Minor Guardianship In The General Principles Of Civil Law Of China

The General Principles of Civil Law promulgated in May 2017 have made significant changes to the guardianship system for minors in China.The greatest highlight is the innovation and perfection of the system of revocation of guardianship for minors and the restoration of qualifications after revocation.The withdrawal system of minor guardianship actually embodies the overall development of our country's minor guardianship system.The promulgation of the General Principles of Civil Law has further developed the guardianship system for minors in China,but at the same time,there are still some shortcomings.This article investigates the legislation of Anglo-American law system and continental law system,focusing on extracting the legislative essentials of Japan,Germany,France and other countries of continental law system and comparing them with our country.It evaluates the existing system of revocation of guardianship of minors in our country,and makes suggestions on improving our legislation on the basis of drawing lessons from foreign legislative experience.Apart from the preface and conclusion,the article is mainly divided into five parts.The first part mainly discusses the theoretical basis of the withdrawal system of minor guardianship.The withdrawal system of juvenile guardianship is gradually developed and established on the basis of the juvenile guardianship system,under the influence of the principle of maximizing the interests of juveniles and the legislative concept of interference of public power in the field of private law.Therefore,this part is mainly divided into three parts: the overview of the juvenile guardianship system,the principle of maximizing the interests of juveniles and the trend of public power intervention.The second part combs the current situation of the withdrawal system of minor guardianship in China.Firstly,at the legislative level,it summarizes the reasons for the application,the main body of the application,the start of the system,the consequences of the withdrawal of the guardianship of minors and the existing legislation on the recovery of the withdrawal of the guardianship of minors.Secondly,the judicial level,through the case retrieval of the legal website,concludes that the system of withdrawal of guardianship of minors in China has not been effectively applied in judicial practice.The third part is to comment on the progress and shortcomings of the withdrawal system of minor guardianship in the General Principles of Civil Law of China.The first is the progressive significance of the General Principles of Civil Law,which establishes the principle of maximizing the interests of minors and puts the interests of minors in the firstplace compared with the General Principles of Civil Law.When choosing minor guardians,the General Principles of Civil Law exclude the units where parents belong and replace them with the places where minors are located.When a minor is confronted with guardianship infringement and no one applies for revocation of guardianship qualification,the civil affairs department shall be responsible for filing the application.The General Principles of Civil Law clarify the reasons for the application and the subject of the application for the withdrawal of minor guardianship by enumeration.Secondly,there are some deficiencies in the withdrawal system of minor guardianship in China.First,our country does not distinguish between parental rights and minor guardianship system,so the scope of rights and obligations of minor parents and other guardians is not clear.Secondly,in the start-up of the system of revoking the qualification of minor guardian,the applicants for revoking the qualification of minor guardian,but whether the specific legislative provisions listed can really be exhausted and reasonable,and whether the relevant departments can be competent for this responsibility are still to be discussed;when improper guardianship or guardianship infringement is found,the reporting obligations are not standardized.Mainly reflected in the main body of reporting obligations,the consequences of failure to fulfill reporting obligations have not been further clarified;China has not set up a guardianship and supervision system,which reduces the efficiency of timely detection of improper guardianship.Thirdly,in the case of revocable guardianship of minors,the situation stipulated in the General Principles of Civil Law and the Four-Sector Opinions is that guardians' subjective malicious intentions lead to guardianship infringement and serious damage to minors' physical and mental health,neglecting that guardians' objective guardianship can not cause infringement on minors' property and so on.Fourthly,the resettlement capacity and time of minors' civil affairs departments are limited after their guardianship qualification is revoked.Fifth,the system of restoring guardianship qualification after the revocation of guardianship is too general.The fourth part absorbs foreign legislative experience and puts forward some suggestions on improving the system of revocation of minor Guardian qualification in China.According to the legislative attitude of Anglo-American law system and continental law system on minor guardianship,we should absorb advanced legislative ideas and mature supporting systems.For example,compared with the legislation of juvenile guardianship system in other countries,the civil law countries generally have separate paternity system and guardianship system,while the common law countries do not make a distinction and uniformly adopt the concept of guardianship.In the civil law system,the minor guardianship system,as a supplement to parental rights,can only be applied after the minorloses the protection of parental rights.The division between parents and other guardians is reflected in the selection procedure,management authority and the authority to revoke and restore guardian's qualifications.The concept of paternity is established in the family compilation of the Civil Code of China,and the guardianship supervision system and compulsory reporting system are implemented to improve the starting mechanism of the withdrawal system of minor guardianship.Establish special institutions for minors to guide,supervise,evaluate and resettle minors.The restoration of the revoked guardian's guardianship qualification should be stratified and the time should be allocated reasonably.