On China's Voluntary Guardianship System

Article 33 of the general principles of civil law issued in 2017 provides for voluntary guardianship,which is a great progress of the guardianship system in China.With the development of social economy,the problem of population aging is becoming more and more prominent in China,especially the data surge of "the elderly who lost their independence" and "the empty nest elderly" has brought huge pressure for the elderly in China;the voluntary guardianship system has relieved the pressure of family and Society for the elderly,and provided solutions for the social problems brought by the aging population in China.However,our country's voluntary guardianship system is just in its infancy,which inevitably has many shortcomings.At present,the system is not practical,and its utilization rate is low.Therefore,improving the voluntary guardianship system has become an urgent task.In addition to the introduction of the first chapter,this paper is divided into the following four chapters to study the voluntary guardianship system:The second chapter is an overview of the voluntary guardianship system.It includes the concept of intentional guardianship,the discrimination of related concepts and basic principles.The voluntary guardianship system has established the principle of respecting the will of the ward and the principle of being most beneficial to the ward,which conforms to the concept of respecting the parties' self-determination right in the international guardianship system and conforms to the trend of the times.In the third chapter,through the analysis of the provisions of our country's law,we get three shortcomings of our country's voluntary guardianship system: first,the declaration of capacity limits the scope of the subject of voluntary guardianship,hinders the implementation of voluntary guardianship.Second,the agreement of guardianship is not perfect,the law does not make relevant provisions for the contract of guardianship,the content of the contract,the review of the contract and so on need to be improved.Third,the lack of supervision mechanism,there is no guarantee for the implementation of supervision.The fourth chapter introduces the main contents of American continuous agency system and Japan's arbitrary guardianship system: the biggest characteristic of American continuous agency system is that the content of the voluntary guardianship contract is detailed,there is no public power to supervise but private supervision is in place;while in Japan's arbitrary guardianship system,the provisions of the voluntary guardianship contract are also very detailed,and the public power to supervise Intervention,there is a special family court to deal with custody.The fifth chapter puts forward some suggestions to improve the voluntary guardianship system in China.First of all,it puts forward the suggestion of applying the rule of presumption of capacity in the voluntary guardianship system to expand the scope of application of the voluntary guardianship.The rule of presumption of capacity uses the medical proof standard jointly made by general doctors,psychiatrists and psychiatrists to judge the capacity of the parties,simplifying the cumbersome procedures of the declaration of capacity;secondly,it improves the voluntary guardianship contract,and puts forward the necessary provisions of the voluntary guardianship contract,including but not limited to the rights and obligations of both parties,and supervision The article introduces the notarization system to review the effect of the intended guardianship contract and enhance the practicality of the system.Finally,the supervision mechanism of combining private supervision and public power supervision is used in the supervision.Private supervision is more flexible and can detect the adverse behaviors of guardians in time.However,it is difficult to avoid the abuse of agency power by guardians only by private supervision,and the intervention of public power is also necessary.According to the implementation sequence of voluntary guardianship,public power supervision can be divided into three supervision stages: beforehand,in process and afterwards,and the supervision organizations of each stage shall be determined to define the supervision responsibilities.Private supervision and public supervision are used to fully perform their supervision duties to ensure that the rights and interests of the ward are not damaged.