A Study On The Legal Problems Of Adult Self-determined Guardianship System

With the development of the international human rights concept and the completion of the law-enforcement movement,the study and reform of the guardianship system in China has also been put on the agenda.In this context,the General principles of Civil Law formally established the of adult self-determined guardianship System,which included all adult's with full civil capacity into the scope of adult self-determined guardianship and broadened the applicable subject scope of the guardianship system in China.It respects the autonomy of the parties to the guardianship contract to the maximum extent,strengthens the protection of the residual capacity of the guardian,and consummates the guardianship system of our country.And realized the leaping development of the adult self-determined guardianship legislation of our country.It is a little pity that the General principles of Civil Law established the adult guardianship with a simple provision,and made clear the formal elements of the agreement,but did not establish a special supporting norm for it based on the characteristics.In other words,the concept of the adult self-determined guardianship is not clearly defined in the current legislation,nor is it clear about the applicable order of legal guardianship and adult self-determined guardianship,as well as the conditions for the initiation of the adult self-determined guardianship procedure.At the same time,the legislation has not properly regulated the substantive content of the adult self-determined guardianship,such as the negative qualification of guardian conditions and the fundamental rights and obligations of the parties.In addition,The procedural guarantees of the self-determined guardianship contract and the supervisory guarantee are also in a state of absence.Therefore,This study is divided into four chapters.The introduction briefly introduces the background of the establishment of the adult self-determined guardianship in China,expounds the theoretical and practical significance of the study on the legal issues of the adult self-determined guardianship system,and makes abrief review of the literature.The first chapter is an overview of the adult self-determined guardianship in our country.It explains the meaning,characteristics,nature and function of the adult self-determined guardianship,and introduces the establishment process and the application status in China.The adult self-determined guardianship system and agency,maintenance system are distinguished,and the boundary of the system is defined.The second chapter summarizes and refines the existing legal problems of the adult self-determined guardianship in our country.such as the lack of regulation of the guardianship contract,the unclear application mechanism of the system and other substantive legal issues,the lack of procedural protection and supervisory guardianship guarantee of the adult self-determined guardianship.The third chapter investigates the the adult self-determined guardianship of Common Law,Continental law system and regions from the perspective of comparative law,and extracts the common points of the reform of the adult self-determined guardianship in these countries.It provides theoretical basis and system reference for the suggestion part of the article.The fourth chapter refers to the legal problems of the adult self-determined guardianship found in chapter two,and draws lessons from the third chapter on countries and regions outside the territory.On the basis of mature experience of other countries,Starting from the current practice of custody in China,it is proposed that the content of the entity should be properly regulated,the procedural safeguard mechanism for establishing the adult self-determined guardianship system,the procedural guarantee mechanism for establishing the guardianship contract and the supervision and guarantee mechanism for the guardianship implementation.Suggestions on refining and perfecting the adult self-determined guardianship system in China are proposed in a targeted manner.