Study On The Revocation Of Intended Guardianship

Traditional civil law theory limits the scope of identity law adjustment to kinship.It believes that the object of identity law adjustment only exists in the relationship of husband and wife,parent-child,relatives,etc.However,some contemporary scholars hold the generalized identity law and the identity right of modern civil law is different from that before the Middle Ages.The right holders are no longer the person but the identity,and the core of identity has changed into obligation.Therefore,even if the guardian is a non-relative citizen or organization,the custody of the guardian should be considered as the right of identity.Since the establishment of the intentional guardianship in the modern civil law is an status action,the selection of the intended guardian and the signing of the intentional guardianship agreement is essentially the creation of an status relationship.Whether it is intended to guard against the intended guardianship of the legal guardian or to determine the order of the legal guardian,the essence is to include the intentional guardianship with the intentional custody in the existing human order.Because of its high degree of autonomy,the establishment of intentional guardianship is also divided into act that are solely for the purpose of establishing an status relationship and behaviors that are based on identity but primarily for the purpose of property relations.For the purpose of the status relationship,that is,the intended guardian is determined in the agreement,but the guardianship matter is not clear,and can also be regarded as a general grant of custody;the intended guardianship agreement for the purpose of property relationship is based on identity but mainly for property behavior,and it would usually limit the scope for the custody of the intended guardian.As for the revocation of the intentional guardianship,it involves the revocability of the status action,and the provisions of the General Principles of the Civil Law regarding the revocation of legal acts can be applied to the status action.In other words,whether it is for the general custody granting purpose for the purpose of setting up the custody relationship or for the compulsory custody grant for the purpose of the intentional custody of the property relationship,the declaration of intention is the constituent element.The nature of the status action determines its irrevocable attributes,that's to say,the intended guardianship is revocable.For the withdrawal of the intended guardianship,The revocation described in this article does not only refer to the revocation of the custody of Article 36 of the General Principles of Civil Law,but also the withdrawal or dismissal according to the party's autonomy.It is mainly divided into the revocation of the guardianship qualification and the revocability of the intentional guardianship behavior itself and the will according to the party autonomy,which resulted in different consequences.In addition,due to the high degree of autonomy of the intended guardianship,from the content of Article 33 of the General Principles of the Civil Law,the intentional guardianship agreement only determines the guardian.For specific guardianship matters,the parties need to be refined according to the specific circumstances,so the duty of guardianship is not completely consistent with the content of the statutory guardianship duties,which means that the scope and application of custody of the guardianship are limited compared with the legal guardianship.It means that the intentional guardianship agreement constrains the entrusted legal relationship between the intended guardianship creator and the future intended guardian,and the publicity of the intentional custody grant is to maintain transaction security.Since the intentional guardianship is legal,the agency of the intended guardian can also be regarded as a limited legal agent.Therefore,the revocation of the intentional custody eligibility in accordance with Article 36 of the General Principles of the Civil Code may result in the termination of the intentional custody agreement and the termination of the agency rights,but this wouldn't lead to that the custody relationship is completely resolved.Even if there is a cancellation of declaration of will because of a mistake in the underlying relationship in the intended custody,the effectiveness of the agency act that has been implemented by the intended guardian would not be certainly affected.