The Research On Entrusted Guardianship Of Minors

In recent years,the phenomenon that the rights and interests of left-behind children are damaged is emerging one after another.Therefore,the entrusted guardianship system for minors has become a hot topic in the academic circle.There are still some vacancies and deficiencies in the establishment mechanism,responsibility mechanism and supervision mechanism of the current entrustment guardianship system for minors in China.For entrusted guardianship of minors to practice guide and supervise the guardian fully fulfill their duties of guardianship and rational allocation of the guardian,the guardian and trustee parties rights and obligations,to protect the lawful rights and interests of minors and relief to the victims,it is necessary to improve the present entrusted guardianship of minors system.This paper firstly makes a systematic analysis of the current situation and corresponding defects of the entrusted guardianship system for minors in China.On the basis of comparing relevant systems overseas and combining with the actual situation in China,this paper further puts forward corresponding Suggestions on the establishment mechanism,responsibility mechanism and supervision mechanism of the entrusted guardianship system for minors.In addition to the introduction and conclusion,this paper consists of four parts:The first part summarizes the current situation of entrusted guardianship of minors in China and its defects.In terms of system,completeness and adequency are still lacking:before the implementation of the general principles of the civil law,only the law on the protection of minors and the opinions on the implementation of the general principles of the civil law of the People's Republic of China on issues(trial)have made some provisions on entrustment of guardianship of minors,which are scattered but not systematic.New "general civil law" as an important part of civil code of our country,there is no further on the basis of the foregoing provisions will be entrusted guardianship clearly listed as one of the types of guardianship,and the refined to be perfect,formed relatively complete a minor guardianship system,and even almost no provisions on entrusted guardianship of minors,but in the main content of the guardian's qualification and uneasily,referring to the entrusted guardianship.Interms of content,the deficiencies of the existing provisions are mainly reflected in three aspects: first,the establishment mechanism is not complete.It is difficult to determine whether entrusted guardianship can be established unless the guardian is "unable to perform the guardianship duties",and whether other guardians,except those whose parents are under the guardianship of the guardian,can establish entrusted guardianship,which needs to be explained;The only requirement for the qualification of the trustee is "guardianship ability",which is difficult to adapt to the current complex social situation,and does not involve the negative qualification at all,and it is difficult to guarantee the quality of the trustee.Without limiting the scope of functions and powers that can be entrusted to others,it is difficult to control the risk of damage to the ward;Lack of establishment methods and procedures makes supervision difficult.Second,the responsibility mechanism is unreasonable.On the one hand,it is not stipulated that the guardian should be responsible for the damage caused by the improper establishment of the entrusted guardianship by the guardian,and the subsequent liability mechanism corresponding to the establishment mechanism cannot be formed,which is difficult to achieve the purpose of improving the prudent degree of the guardian in selecting the trustee.On the other hand,the distribution of liability caused by the damage caused by the guardian is not reasonable,and the risk distribution mechanism of the guardian,the guardian and the trustee is unbalanced.Third,the lack of supervision mechanism.The "pan-socialization" of the supervision subject easily leads to the buck-passing among the subjects,the lack of public power supervision subject,and the insufficient state security.The content of guardianship duty is not perfect,and it is difficult to realize the purpose of guardianship supervision.The second part about the establishment of entrusted guardianship of minors in our country the reasonable interpretation of the relevant specification,and specific to set up the premise,the scope of the trustor,the trustee's qualification,can be the matters entrusted and the way of setting up perfect Suggestions are put forward: the guardians of minors can't fulfill their duties of guardianship for objective reasons,if the matters entrusted with temporary,special sex,can oral form to set up the entrusted guardianship;If the entrusted items arelong-term and general,a third party shall be entrusted to exercise part of the guardianship duties in written form according to the legal procedures.No matter in what form to set up entrusted custody,the trustee should have both positive and negative qualifications.The third part puts forward some Suggestions on improving the responsibility mechanism of entrusting guardianship to minors in China.On the one hand,it is necessary to increase the regulations on the liability of the trustee for damage caused by the improper establishment of entrusted custody by the guardian,and make it clear that the guardian should be responsible for the behavior of the appointed trustee and supervise the trustee.If the guardian sets up or selects an improper trustee instead of entrusting guardianship,the guardian shall be liable to the ward for compensation and may be disqualified from guardianship.On the other hand,based on the factors such as the recognition ability of the guardian and the fault of the guardian and the trustee,the liability bearing mechanism of the guardian and the guardian and the trustee after the damage caused by the guardian is reconstructed.The fourth part puts forward Suggestions to improve the supervision mechanism of minors in China.This is mainly reflected in two aspects: one is to adopt the mode of combining public supervision with private supervision,administrative supervision with judicial supervision,and establish the supervision subjects of minors' guardianship,including people's courts,civil affairs departments and guardianship supervisors.The second is to clarify the supervision duties,including preventive supervision duties and relief supervision duties.