Research On The Improvement Of Adult Voluntary Guardianship System In China

Deepened with the acceleration of population aging process,the vigorous development of the international human rights cause,the adult guardianship system from ward "heteronomy" is gradually transformed into mainly by guardian "autonomy",by the focus on property management to pay attention to personal protection,guardianship concept also updated,"respect for self-determination" "use residual capacity" normalizing "living" concept gradually influence,guardianship legislation reform of adult guardianship system in the long-term by legislation and judicial practice,gradually build up and formed a mature and distinctive system.Different countries have different names for adult voluntary guardianship,such as Germany's pre-authorization system,Japan's arbitrary guardianship contract,South Korea's guardianship contract,Switzerland's pre-care instruction and patient instruction.For the convenience of narration,this article is collectively referred to as adult voluntary guardianship.The adult voluntary guardianship system means that an adult with sound ability entrusts all or part of his personal care,property management and other related affairs to the trustee,and when the principal loses or partially loses his capacity for conduct,the trustee shall perform corresponding guardianship duties to the principal.China is the country with the fastest aging speed and the largest elderly population in the world,and the elderly population type is complex and diverse.Under the background of modern social transformation,the change of traditional family concept and the rise of human rights awareness,it is an inevitable trend of social development to construct and improve the adult voluntary guardianship system.The law of the People's Republic of China on the protection of the rights and interests of the elderly amended in 2012 for the first time stipulates voluntary guardianship for the elderly,and the general principles of the civil law of the People's Republic of China passed in 2017 expands voluntary guardianship for the elderly to adult voluntary guardianship.As a milestone in the development of adult voluntary guardianship system in China,the incorporation of adult voluntary guardianship into the guardianship system is only the first step to construct the adult voluntary guardianship system.At present,the regulation of our country about adult guardianship system by,is only a rough framework,about adult guardianship by subject and its rights and obligations,establish a form,content,effect and termination and no specific provisions,the relevant form a complete set of application system,such as adult guardianship by registration system,adult guardianship supervision system has yet to make.To construct and perfect the adult voluntary guardianship system,the road is blocked and long,the line will come.This paper attempts to construct and improve the adult voluntary guardianship system with Chinese characteristics in line with China's social environment by referring to the mature foreign adult voluntary guardianship system and the views of domestic scholars.Only by constructing and improving the adult voluntary guardianship system from the perspective of entity system and procedure system can the whole system be rigorous and feasible.Entity system,mainly involving the adult guardianship by subject,the rights and obligations,to set up the form and content of establishment,etc.,who can set up a custody agreement by agreement,the guardian needs to have what qualifications,by which matters can be agreed by the parties,what matters is restriction or prohibition on the contract,agreement shall,in any form contract need substantive law to rule,to guide the parties to a reasonable and standard set up by adults guardianship;Application system,mainly involving adult guardianship by registration and supervision system,how to choose our country adult guardianship by registration authority,the registration authority what duty,our country adult guardianship supervision by agreement shall be in what kind of pattern,adult guardianship by supervisors and their responsibilities,the selection of what authorities for the supervision by public power supervision mechanism,and how the supervision responsibility,this a series of the provisions of the relevant procedure is the most powerful enforcement of adult guardianship by security.About the construction of our country adult guardianship system by system and perfect,must from the respect I mean said maximum freedom,safeguard the rights and interests of ward's perspective,combined with the actual situation in our country,foreign mature experience for reference and the authors suggest that in order to make the adult guardianship by really take root in our country,achieve the goal of the initial set up.