Research On The Effect Of The Guardian Disposing Minor's Property

The minors are great important civil subjects.They enjoy property rights basing on their independent personality.Due to the limitation of the civil capability of minors,the law provides that the guardian shall supervise and protect the minors' personal,property and other legal civil rights and interests.Guardian's protection of minor's property includes guardian's management of minor's property according to law,the most important of which is the disposition of the minor's property by the guardian.In order to protect the property rights of minors and restrict the guardian's power to dispose of minor's property,Article 35,paragraph 1,of the General Provisions of the Civil Law and Article 18,paragraph 1,of the General Principles of Civil Law clearly states: "The guardian may not dispose the minor's property under guardianship except to protect the interests of the person under guardianship." However,this provision only restricts the right of the guardian to dispose of the minor's property in principle,and it is not specified as to what is "in order to protect the interests of the guardian" and what is the effect of the guardian's "not for the benefit of the guardian" in disposing of the property of the guardian.The principled nature of the law has led to constant debate in the theoretical world about the effect of guardians in disposing of minors' property,and the judgments in such cases are different in practice.This article starts from the basic theory of the effect of the guardian disposing minor's property,and uses literature research,case analysis and comparative analysis methods,combined with the legislative purpose and interpretation of Article 35 of the General Provisions of the Civil Law,and stands on legal agency system,in-depth analysis of the agency nature of the guardian's disposal of minors' property.On the basis of learning the advanced experience from extraterritorial Germany and France,the article put forward the method of determining the effect of the guardian's disposal of minors' property with a view to providing jurisprudence support for the determination of the effect of the guardian's disposal of minors' property.The main content of this paper consists of five parts:The first part is basic theory of the effect of the guardian disposing minor's property.By clarifying the basic concept of the guardianship system of minors,distinguishing the differences between parental authority and guardianship system,and clarifying the subject of guardianship of minors and the system of guardianship of minor's property,this part lays a theoretical foundation for the following determination of the effect of the guardian disposing minor's property.In the second part,this paper analyzes dilemmas of the effect of the guardian disposing minor's property.Under the framework of the current legal system in China,there are many dilemmas in determining the effect of the disposition of minor's property by guardians,which can be manifested in the principle of the criterion of validity determination,the reality of grand guardianship system,and the lack of effective supervision of guardian's property disposition.First of all,the existing legal norms in China regarding the determination of the effect of the guardian disposing minor's property are principled.Neither the judgment criterion for the interests of the minor is clear,nor the specific path for determining the effect of the disposition of minor's property by guardians is clear.The ambiguity of legal provisions leads to the difficulty in determining the effect of the disposition of minor's property by guardians.Secondly,China adopts the legislation of grand guardianship system,which does not clearly distinguish between the system of parental power and the guardianship system.Because of the difference between the parents and other guardians of the effect of the disposition of minor's property,the grand guardianship system makes it difficult to distinguish between parents and other guardians of the effect of the disposition of minor's property.Finally,China lacks a complete guardianship supervision system and the subject of guardianship supervision,and lacks effective supervision over the behavior of guardians in disposing of minors' property.Therefore,in order to solve the practical difficulties in determining the effect of guardians' disposition of minor's property,the third part of this paper analyzes the relevant experience of France and Germany outside the region,and continuously promote the determination of the effect of the guardian's disposition of minor's property by drawing on the advanced experience of the country.In the third part,this paper learns experience of the effect of the guardian disposing minor's property from extraterritorial country.This part makes a comparative analysis of the legal provisions on the disposal of minors' property by guardians in Germany and France of the civil law system,and summarizes the advanced experience that China can learn from.The German and French civil laws distinguish the disposition of the property of minors by parents and guardians,stipulate the different duty of care for the disposition of the property of minors by parents and guardians,and specifying the scope of the property of minors that parents and guardians can dispose of and the scope of the disciplinary actions that parents and guardians can implement.In addition,the German and French civil laws set up guardianship courts and property supervisors to double supervise the disposition of minors' property by parents and guardians.Through the comparative study of the relevant legislation of Germany and France,this paper provides reference for the improvement of the norms on the effectiveness determination of property disposition of minors by guardians in China,as well as the specific practice of the effectiveness determination.The fourth part mainly analyzes on the effect of the guardian disposing minor's property.Defining the composition of the guardian's disposition of the minor's property and the recognition criteria that are for the benefit of minors are the prerequisites for determining the effect of the guardian's disposition of minor property.The guardian's determination of the effect of disposing minor's property shall distinguish between the effect of de facto sanctions and legal sanctions.The effect of the guardian's disposing of the property of minors should be based on balancing the interests of the protection of minors' interests,the maintenance of transaction security,and the guardian's discretion,recognizing the unreasonableness of the path of determination of the effect of unauthorized punishment and abuse of agency power and the rationality of the path of unauthorized agency.This article believes that the guardian,as the legal representative of a minor,has the authority to deal with the property of minors.Article 35 of the General Provisions of the Civil Law is a clause that limits the guardian's authority to deal with the property of minors.Its purpose is to protect the minor's interests to the maximum extent.If the guardian is not for the benefit of minors,the effect of the disposition of the minor's property shall be determined to exclude the application of apparent agency,its internal effect is tort,the external effect is unauthorized agency.The fifth part is suggestions for improvement of the effect of the guardian disposing minor's property.This paper holds that the effect of guardian's disposal of minors' property should fully implement the principle of maximization of minors' interests.On this basis,Article 35 of the General Provisions of the Civil Law should be improved and a family court and guardian supervisor should be set up to continuously advance the determination of the effect of the guardian disposing minor's property.