Research On The Issue Of China's Intentional Guardianship System

As a system to guarantee the basic human rights of disabled adults,intended guardianship has been implemented in many countries.However,prior to the promulgation of the General Principles of the Civil Law of the People's Republic of China,China had no clear regulations on the intended guardianship system.Until 2013,through amendments to the "Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly",there were specific provisions on the guardianship of the elderly in Article 26.However,the focus of this provision is only on the guardianship of the elderly,and does not include the guardianship of other adults who should be guarded.Until the General Principles of the Civil Law of the People's Republic of China promulgated in 2017,the intended guardianship system was stipulated in the form of provisions.From the practical point of view,the two laws are not perfect for the intended guardianship system.Therefore,the author mainly analyzes the problems faced by the intended guardianship system in China from this perspective and proposes corresponding solutions.The main body of the article is divided into four parts.The first part is an overview of the intended guardianship system.Intentional guardianship is an adult who has the ability to act,and enters into a custody agreement with others according to his own wishes.When he loses his or her ability to perform due to illness,intelligence,old age,etc.Guardian,a system that manages or disposes of property on its own behalf.Intentional guardianship is different from the concepts of maintenance,agency,bequest maintenance agreement,etc.It has its own unique functions.The main manifestations are as follows: First,it can alleviate social problems caused by aging and maintain social stability.Second,it can organically combine public power and private law autonomy,and give full play to their advantages.Third,fully protect the basic human rights of the guardian,so that disabled adults can live a more dignified life.The second part analyzes the deficiencies of China's intended guardianship.First of all,the legal provisions do not clearly define the standards for the guardian's incapacity.According to the meaning of the intended guardianship system,the signing of the intended guardianship agreement between the two parties requires the guardian to have the ability to act and be able to make an independent expression of intention.If the guardian has lost his ability to conduct a guardianship agreement with a third party,the intended guardianship cannot begin.So how to judge the guardian's behavioral ability needs to be discussed.Secondly,there is no clear instruction on the content of the intended guardianship agreement.The intended guardianship agreement is the main basis for the guardian to perform his guardianship duties.Therefore,the specification of the content of the agreement should be specific,that is,what matters can be stipulated in the agreement,and what matters are restricted and cannot be stipulated,there should be clear legal basis,but at present our country's laws have not explicitly stipulated this.Thirdly,in terms of choosing an arbitrary guardian,Chinese law does not clearly define the qualifications of the intended guardian,the duties and rights that the guardian should perform,and this may cause the intended guardian to implement guardianship.Appearing to be in a state of neglect to perform its duties and even damage the rights and interests of the guardian.Finally,China's intended guardianship system has no supervision procedures.The effective implementation of any system is inseparable from supervision,especially the intended guardianship system.The third part is to further analyze the existing problems in China's intended guardianship system,and further analyze the requirements of the British and American law systems and civil law countries on the intended guardianship system.For example,the UK An analysis of the adult care system in Japan and the arbitrary guardianship system in Japan revealed the advantages of these countries' intended guardianship system in order to provide inspiration and reference for the improvement of the intended guardianship system in China.The fourth part puts forward perfect measures to the deficiencies of China's intended guardianship.First,with regard to the judgment of the guardian's capacity,we can use the guardian's judgment when signing a guardianship agreement with a third party,or notarize the agreement,and request the parties' capacity through the notary process in China.Be judged.Secondly,it is necessary to clearly define the positive and negative conditions for serving as the intended guardian.Not all persons selected by the guardian can serve as the intended guardian.Thirdly,the nature of the agreement should be clarified in law.The content of the agreement is mainly based on the agreed property relationship,and there must be restrictions on personal relationship matters.At the same time,it should be made clear that the guardianship agreement requires notarization.Fourth,while stipulating the obligations of the guardian,it is clear that they also have the right to claim compensation and resignation.Fifth,introduce supervision procedures into the intended guardianship system.It includes not only the selection of a guardian supervisor for the guardian,but also the supervision of the public powers of the state,such as the establishment of a special family court in the court.In short,the intended guardianship system can alleviate many social problems caused by aging,respond to the call of international human rights protectionism,and enable adults to truly live a dignified life after disabling their capacity to protect their basic human rights.It is hoped that the discussion of issues related to the intended guardianship system in this article can provide some ideas and perspectives for solving some difficult problems faced in the implementation of intended guardianship.