Research On Intentional Guardianship Supervision System In China

The changing concept of guardianship has facilitated the revision of national guardianship legislation in various countries to address the increasingly prominent social problems of ageing.A sound guardianship system has not only become the legislative demand of modern countries,but also an important content that needs to be perfected in our country.China has entered an aging society,the protection of the rights and interests of the elderly has attracted wide attention,but the existing guardianship system can not better safeguard the rights and interests of the elderly.The Law on the protection of the rights and interests of the elderly,as amended in 2012,first embodied the concept of guardianship,and after 5 years,the general provisions of civil law adopted in 2017 clearly set out the meaning of guardianship as a new form of guardianship.The establishment of the guardianship system has perfected the legislation of the guardianship system in China and promoted the innovation,progress and development of the guardianship legislation.The guardianship system was set up to safeguard the legitimate rights and interests of the ward.The initiation of the guardianship system means that the ward is in a state of incapacitation or intellectual loss,at which time the selected guardian is consulted to exercise the personal and property rights of the ward on his behalf.In judicial practice,there are often situations in which the intention of the guardian to abuse custody endangers the interests of the ward,the reason is that there is no relevant mechanism to restrain the guardian's guardianship behavior,that is,care under the guardianship,lack of due supervision system.Therefore,it is very important to establish the intention guardianship supervision system which is compatible with the Italian guardianship system.Abroad,Britain,the United States,Canada and other countries in the Anglo-American legal system and Japan,Germany,South Korea and other countries in the civil law system have established a relatively mature and perfect system of guardianship and supervision.With the deepening of thephenomenon of aging,although China's legislation on the meaning of guardianship provisions,but there are still many defects in the establishment of the system,the most important of which is the lack of the guardianship supervision system.Therefore,the purpose of this paper is to try to construct an Italian guardianship supervision system suitable for China's national conditions through the study of the supervision system of Italian guardianship in foreign countries.This article is divided into four parts,the specific content is as follows:The first part of the meaning of the Guardianship supervision system overview.This part first expounds the concept and characteristics of the supervised guardianship supervision,from the point of view of different scholars,defines the concept of the guardianship supervision system,and summarizes its three characteristics,and secondly,analyzes the theoretical basis and necessity of the establishment of the guardianship supervision system in China,from the theoretical and practical significance of the two aspects of analysis and discussion.The second part is about the comparative law investigation of the guardianship supervision system.This part introduces the legislative provisions of the six representative countries in the two legal systems,compares the common points and differences between the six representative countries,and summarizes them into the two-track supervision mode of public authority supervision mode,private supervision mode,public power and private balance,and analyzes the advantages and disadvantages of these three models.The third part of China's intention to establish the status of guardianship related legislation and its legislative defects.This part analyzes the present situation of the legislation of the existing guardianship and guardianship supervision in China,and points out that there are four problems in the lack of clarity of the supervision subject,the lack of supervision object,the deficiency of the authority and responsibility of the supervision subject,and the absence of the specific supervision measures.The four part is the legislative construction of China's intention guardianship supervision system.On the basis of drawing lessons from the legislative experience of foreign intended guardianship supervision system,this part chooses the mode of guardianship supervision which is suitable for China's national conditions,and in view of the shortcomings of the relevant legislation in our country,from the principles that should be followed in the guardianship supervision,the subject of supervision,the object of supervision,the authority and responsibility of the supervisory subject.Some suggestions are put forward for the construction of China's intention guardianship supervision system.