Study On The Adult Self-determined Guardianship System In The General Principles Of Civil Law

The guardianship system originated from the interdiction system of ancient Roman law,with the deepening of social population aging,The United States,Britain,Germany and Japan have followed the situation in time to propose an adult self-determined guardianship system.However,the adult guardianship system with legal guardianship as the main form of guardianship of our country has been unable to cope with the problems caused by aging.Establishing an adult self-determined guardianship system in the General Principles of Civil Law,inclusion of elderly,disabled and physically and mentally handicapped persons in the scope of self-determined guardianship,fully respecting the independent choice of the parties,reflecting the value concept of "respecting the right to decide independently" advocated by the international community.The publication of the General Principles of Civil Law established the system of adult self-determined guardianship.The intended application of the self-determined guardianship is extended by the elderly to all adults with complete civil capacity,and fully respect the autonomy of the parties,the parties can choose the appropriate guardian according to their own wishes.However,the existing law only provides a framework for the self-determined guardianship system,there are still many problems in the specific application.For example,the order of application of the self-determined guardianship and legal guardianship,designated guardianship is disordered,when there is a conflict between the three,it is impossible to determine which guardianship method is preferred,and how to circumvent the self-determined guardian's duties and responsibilities for different self-determined guardianship contracts;the regulation of rights and obligations of the guardian and the person under guardianship are not clear,it does not involve specific duties of guardians exercising their guardianship,the parties cannot arrange their actions in accordance with established rules;the applicable rules and applicable procedures for self-determined guardianship are relatively rough,no refinement of the rules for the establishment,entry into force,and dissolution of the self-determined guardianship contract;lacking of the supervision system of self-determined guardianship,public authorities that do not explicitly exercise supervision,as well as self-determined guardian supervisors,there is no relevant regulation on the supervisory duties that the supervisory entity should perform,etc.With the defects in the self-determined guardianship system,we must actively propose comprehensive measures,clearly self-determined guardianship should follow the principle of intended custody priority and best for the benefit of the person under guardianship;materialize the content of adult self-determined guardianship,further refine the rights of the self-determined guardian,it has the right to receive remuneration for hard work in guardianship,for the self-determined guardian who cannot continue to perform the guardianship duties due to objective reasons,he has the right to resign according to law;standardizing conditions for the self-determined guardianship,including the requirements for the establishment of the self-determined guardianship contract,the requirements for the entry into force,and the qualifications of the subject to be satisfied by the parties,emphasize that the establishment of an self-determined guardianship contract must be in writing,self-determined guardians must meet strict age,behavioral,economic and moral conduct requirements,clearly providing guidance from the notary office for the conclusion of the self-determined guardianship contract,improving the notarization procedure for the self-determined guardianship contract,the self-determined guardianship contract for the purpose of satisfying the statutory dismissal shall be followed by a legal procedure;establishing an effective supervision system of adult self-determined guardianship,strengthen the supervision of public authorities,forming a public power supervision mode with "the people's court as the main and the administrative organ as the supplement",legalize public power supervision,determining the way in which the self-determined guardianship supervisor is selected,limitation of the scope of election of the self-determined guardianship supervisor,it is clear that the guardianship supervisor has the right to access,the right to approve,and the right to investigate and report,etc.The development of any system has to go through the process from immaturity to maturity,by analyzing the main problems faced by the adult self-determined guardianship system at different stages,to solve the problems one by one to improve relevant legislation,the development of the adult self-determined guardianship system in China can rise to a higher level.