Research On Adult Self-determined Guardianship Contract In China

Article 33 of the General provisions of Civil Code in our country changed the adult self-determined guardianship system from theory to legislative norms.According to its regulations,adults have the right to choose future guardians to ensure the realization of their lives and rights.However,oneself shall have full capacity to act when he choose,and shall be in written form with the consent of the other party.The agreed adult self-determined guardianship contract negotiated by both parties is the form and core content of the system,however,the articles of law lack detailed provisions on the self-determined guardianship contract,there is no specific rule design for the main body requirements,content requirements,form elements,effective methods,termination reasons,etc.This will inevitably lead to the application of the system in practice.Therefore,at present,the adult self-determined guardianship contract still needs further research and improvement in order to better achieve the purpose of the system.The self-determined guardianship contract is a commission contract with effective conditions,but it has certain particularity.That is to say,the effectiveness of the conditions is based on the premise that the client becomes a person with limited or no capacity.Therefore,in order to protect the rights and interests of the client,its system can no longer apply to the general situation of the commission contract.When designing the system,the law should pay attention to the protection of the client's rights,ensure the realization of the fairness and justice of the law for the vulnerable groups,and prevent the trustee from abusing his rights,this is different from the commission contract based on the autonomy of will.Therefore,the law should make special regulations on the form,rights and obligations,effectiveness and other aspects of the self-determined guardianship contract.In the aspect of the subject of the contract,in order to protect the interests of the ward after the contract comes into effect,it is necessary to restrict the subject conditions of the guardian by legislation and set up the corresponding qualification prohibition rules.With the trend of socialization of guardianship,the government should take the corresponding regulatory responsibility for the organizations involved in guardianship business,set up strict market access threshold and industry norms,and limit their business scope.The legislation of foreign countries provides ideas for our country,which can restrict the content of the self-determined guardianship contract in the law,form the restriction to the trustee,avoid the abuse of rights and damage the personalrights or property rights of the trustor.It is still difficult to guarantee the authenticity and legitimacy of the self-determined guardianship contract only in written form.In order to effectively prevent disputes,it is a preferable way to notarize it by a notary office.As for the effectiveness of the self-determined guardianship contract,it should not share the guardianship declaration procedure with the legal guardianship as the starting rule.The start-up rules can be improved through notarization,using professional medical institutions to issue appraisal opinions to make up for the lack of professionalism of notarial office in the identification of capacity.Both parties have the right to arbitrarily terminate the contract before the contract becomes effective.However,after its coming into force,considering the obvious non equivalence of the capacity of the ward and the guardian,the right of the guardian to terminate the contract needs to be limited.