Research On Procedural Security Of Adult Legal Guardianship System

The article is about procedural security of adult legal guardianship system,and it is from the perspective of one's own right.Firstly,this paper summarizes the main procedure of the adult legal guardianship system.Then,this paper analyzes the problems of the adult legal guardianship protection in our country.Finally,from the perspectives of supporting self-decision-making and restricting the encroachment of power,this paper puts forward the legislative suggestions to perfect the adult legal guardianship procedure.The article is divided into four chapters :The first chapter is the connotation of adult legal guardianship protection procedure.This section mainly introduces the international background,legitimacy basis and guiding principles of the adult legal guardianship procedure.With the changes of guardianship mode,the adult legal guardianship protection procedure came into being.Many countries begin to apply the principle of presuming a person with capacity,proportionality and the best interests as the guide of designing adult legal guardianship procedures.The second chapter is the main and common procedure of adult legal guardianship.By reading substantive law and procedural law of Germany,Japan,the United States and France etc,this chapter summarizes the general procedure of the adult legal guardianship system.Including the guardianship initiation procedure,the hearing procedure,the court permitting procedure,guardianship supervisory procedureand so on.Although countries have different considerations on design-related procedures and different judicial costs for various procedures,all countries focus on injecting the factors of supporting the ward active participation in the process,all emphasize that public power should interfere and intervene the adult legal guardianship procedure,all put the security one's own right as the purpose of this regulation.The third chapter is the problems about adult legal guardian in our country.From the beginning of the guardianship procedure,oneself doesn't have the right to start up the procedure.In addition,throughout the procedure of guardianship,there is no procedure for limiting the guardian's power and there are no review mechanisms,resulting in the frequent reports that guardians maliciously infringed upon the ward.Moreover,since the procedure of guardianship declaration in our country is a special procedure,which belongs to the the first trial the final appeal,the person has no right to appeal,resulting in the impingement of individual rights without remedies!The fourth chapter is legislative suggestions on adult legal guardianship procedure in our country.Firstly,from the principle of auxiliary protection,the paper puts forward the guardianship support procedure.Secondly,from the perspective of restricting the guardianship's power,the paper puts forward the suggestions about the court approval procedure,the establishment of the monitoring procedure and so on.From the perspective of regulating the infringement of public power,the paper puts forward restrictions on the establishment of guardianship procedures,including the identification to imperfect ability and the comprehensive evaluation procedure.In order to effectively guarantee the rights of the ward,guardianship supporting programs combining the guardianship limiting procedures are necessary.Only in this way,the interests of the people who are under the guardianship can be maximally protected!...