On The Perfection Of Our Country's Voluntary Guardianship System

Since the middle of the 20 th century,some developed countries have faced the reality of population aging,and have reformed the adult guardianship system,thereby stipulating the Arbitrary guardianship system.The core idea of the system is to respect self-determination and maintain normal life.Establish an arbitrary guardianship system to protect the legitimate rights and interests of relatively disadvantaged groups such as the physically disabled,the mentally disabled,and the elderly with high collars.Although China has stipulated the Arbitrary guardianship system in the Amendments to the Law on the Protection of the Rights of the Elderly in 2012 and the General Principles of Civil Law implemented in 2017,the provisions in principle have been made,and there is a lack of more specific provisions on the contents,notarization and supervision system of the guardianship contract,so that The use of Arbitrary guardianship in practice is in an ambiguous state.With the aging of our country's population and the international community's emphasis on human rights protection,the improvement of China's arbitrary guardianship system has become a major theoretical and practical issue that needs urgent solution.Against this background,it is of great significance to improve China's arbitrary guardianship system.This paper is divided into four parts,the specific contents are as follows:The first part is the basic theory of the arbitrary guardianship system.It expounds the meaning,nature and classification of the arbitrary guardianship system,and proposes that the nature of the Arbitrary guardianship belongs to the unity of rights and obligations.Clarify the relationship between the Arbitrary guardianship and related concepts such as legal guardianship,entrusted guardianship,and Legacy Support Agreement,and have a comprehensive interpretation of the Arbitrary guardianship system.Provide theoretical support for China's arbitrary guardianship system.The second part is the status quo and existing problems of the arbitrary guardianship system in China.This paper discusses the importance of the guardianship system from five aspects: respecting and protecting human rights,implementing the principle of voluntariness in China's civil law,responding to the practical needs of an aging society,maximally protecting the interests of the ward and adapting to the needs of special groups.The paper analyzes the current status of the Arbitrary guardianshipsystem in the Law on the Protection of the Rights and Interests of the Elderly,and the General Principles of the Civil Law.Regarding the cases of arbitrary guardianship,the practical status of the system is summarized,and the application order of Arbitrary guardianship is not clear,the arbitrary guardianship contract is incomplete,the specific detailed regulations are lacking,The procedures for the use of arbitrary guardianship is not standardized.Notarizing the arbitrary guardianship contract does not replace the publicity effect of registration.The lack of an arbitrary guardianship supervision system cannot solve the problem that the arbitrary guardian harms the interests of the guardian in real life.The third part is the comparison and reference of the arbitrary guardianship system.This article mainly selects the legislation examples of arbitrary guardianship in Germany,Japan,the United States and the United Kingdom,and introduces the background and main content of the development of the arbitrary guardianship system abroad.It has got some enlightenment,and it has certain reference significance in the aspects of the establishment of the Arbitrary guardianship contract,the qualification of the arbitrary guardian,the notarization and registration of the Arbitrary guardianship contract,and the Arbitrary guardianship supervision system.The fourth part is the suggestions to improve China's Arbitrary guardianship system.In view of the problems in China's Arbitrary guardianship system,The principle of least restriction and best interest should be taken as the basic principles for Arbitrary guardianship system,the application order of arbitrary guardianship should be clearly defined,and Arbitrary guardianship should take precedence over other types of guardianship.Improve the subject qualification,effective conditions and termination situation of the Arbitrary guardianship contract one by one,standardize the use procedure of arbitrary guardianship,and establish a notarization system and registration system for arbitrary guardianship.At the same time,a arbitrary guardianship supervision system should be established,adopting the model of private supervision and indirect supervision of public power.Notary agencies should be used as prior supervision,the intended guardian supervisor and civil affairs department should be used as in-process supervision,and the court should be used as post-event supervision to build a comprehensive The intended arbitrary guardianship supervision system.