Research On The Willful Guardianship System

Testamentary guardianship system is the content of Article 29 of the general principles of civil law,which expands the scope of guardianship system.For the first time,the legislation of our country stipulates the system of guardianship of wills,which is very general in its application and advantages.In order to optimize the follow-up judicial interpretation and the accuracy of judicial application,we need to make a detailed analysis and in-depth research on it.First of all,it is necessary to clarify the basic concept and nature of the testamentary guardianship system,determine the scope of the intended guardianship,and clarify the conditions for the establishment of the testamentary guardianship system,that is,only the parents of the guardian,the designated Guardian agree to appoint,the designated guardian has the guardianship ability,and there is no adverse situation for the guardian.Secondly,through the rudiments of the guardianship of will system in the common law and the evolution of the guardianship of will system in the written law,we can explore the development of the guardianship of will system.Third,it analyzes the current situation of the guardianship system of wills in China and sums up the remaining defects,that is,the applicable principles are not determined,the rights and obligations of the appointed guardians are not clear.At last,the author puts forward some suggestions to improve the legislation of testamentary guardianship system of our country by studying the advanced legislation experience and legislative measures in the countries of common law system and civil law system.That is to say,in the aspect of legislation,the author gives reasonable suggestions from the application principle of testamentary guardianship,the rights and obligations of the designated guardians,the supervision mechanism of testamentary guardianship system,and in the aspect of testamentary guardianship In the principle of application,the principle of priority application of testamentary guardianship,the principle of maximizing the interests of the ward,the principle of respecting the will of the designated guardian and the ward are explained in detail,and the practical significance and institutional advantages of the principle are pointed out.In the process of clarifying the rights and obligations of the designated guardian,the author elaborates the specific obligations of the designated guardian,the remuneration right of the designated guardian,the independent choice right under the special circumstances of the designated guardian and the fault tolerance right of the designated guardian.In the aspect of establishing the supervision mechanism of testamentary guardianship,the effective supervision of the system can be realized by setting up the supervisor of testamentary guardianship to supervise the effectiveness of the guardianship of the appointed guardians,and establishing the connection mechanism between testamentary guardianship and public guardianship.