Study On The Effect Of Guardians' Disposition Of Minors' Property

Although the first paragraph of Article 35 of the Civil Law of the People's Republic of China stipulates that "the Guardian may not dispose of the property of the ward except to safeguard the interests of the ward," this paragraph does not specify the effectiveness of the Guardian's violation of the provision.It can be seen from the analysis of relevant judicial cases that there are two distinct types of valid and invalid decisions made by the courts on the validity of the actions of guardians in disposing of minors 'property,and that the decisions taken at the time of the decisions are different.In the process of identification,there was no consensus on the relevant legal issues,and the phenomenon of different judgments in the same case emerged one after another.Based on this,this paper will start from the basic theory of civil law and combine the relevant judicial decisions to study the effectiveness of the Guardian's disposition of minor property.In addition to the introduction,this article is divided into four parts:The first part is the investigation of the judicial status quo and the introduction of questions.Firstly,the author combs the relevant cases in judicial practice and points out that there are obvious differences in the court's application of Article 35,paragraph 1 of the Civil Law General Provisions to determine the effectiveness of the Guardian's disposition of minors 'property.The reason why this disagreement arises is that the courts have different understandings of the behavior of guardians in disposing of minors 'property,which is manifested in what is "not for the benefit of minors" and what is "minor property".How to interpret the meaning of "punishment" and other three aspects.The second part discusses the premise of determining the validity of the Guardian's disposition of the minor's property.First of all,the question of whether property acquired by the Guardian and registered in the name of the minor is owned by the minor and whether the disposition of such property should be limited by article35,paragraph 1,of the General Civil Code is discussed.Secondly,the author discusses the punishment of violation of the interests of minors,and points out that the principle of maximizing the interests of minors should always guide the judgment on this issue,and abandon the current judicial practice and the existing substantive judgment and formal judgment standards in the theoretical circle.And finally it isclear that it should be combined with the three elements of the punishment purpose,the risk of the punishment behavior and the result of the punishment to comprehensively consider whether the punishment behavior meets the interests of minors.Finally,the author analyzes the nature of "disciplinary" behavior of guardians from the normative level and the practical level respectively.From the normative level,the "punishment" in the first paragraph of Article 35 of the "General Civil Law" is actually granted to the guardian to represent the power of disposal.The Guardian does not have the right to dispose of the minor's property in his own name.From the practical level,it is observed that when the Guardian breaks through the pattern of behavior stipulated by the law and disposes of the minor's property in his own name,if the third party can know the existence of the agency relationship through objective facts,the nature of the disciplinary act still belongs to the agent.The third part discusses the way of judging the validity of the Guardian's disposition of the minor's property.Firstly,the paper reviews the normative attribute analysis path in judicial practice and points out the error of the path.Then point out that the validity of the act should be determined from the relevant rules of agency,and through further theoretical evidence and a summary of judicial experience outside the country,it is clear that the property disposal act of guardians that violates the interests of minors constitutes an unauthorized agent beyond the authority of legal agency.Therefore,the determination of the validity of the act should be carried out under the path of non-authorized agency.In the fourth part,the author analyzes the effectiveness of the act when the third party's subjective state is good faith and malevolence.When the third party is in good faith,after the measurement of interests and the analysis of the elements of the representation agent,it is difficult to establish an representation agent even if the third party is well intentioned.The non-authorized agency act is not valid for minors unless it is recognized after the minor has reached adulthood..In the case of malicious acts of a third party,if he knows that the act is harmful to the interests of the minor,and given that the law already has a clear warning rule,the third party still ignores the rule and allows and cooperates with the guardian to implement it.The court may directly determine that the property disposal act of the Guardian and the third party maliciously colluding to harm the legal rights and interests of the minor is invalid;If the third party does not know that the act is contrary to the interests of the minor due to negligence,the act of agency shall not be effective against the minor unless it isrecognized after the minor has reached adulthood.