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Research On Guardian's Responsibility Of The Intended Guardianship

Posted on:2020-08-03Degree:MasterType:Thesis
Country:ChinaCandidate:X Q ZhuFull Text:PDF
GTID:2416330626450504Subject:Science of Law
Abstract/Summary:PDF Full Text Request
With the aging of the population phenomenon is increasingly serious,the number of disabled elderly people is growing,more and more people are in need of guardianship.And with the rising awareness of international human rights,the perfection of guardianship system has become an important factor for social development and stability.The contemporary adult guardianship system has gradually got rid of the complete guardianship,it has developed into a partial guardianship mode with respect for the independent decision of the ward and the use of residual ability as the basic idea to assist decision-making.To conform to the trend in legislation in our country,introducing the "intentional guardianship system" into the general principles of civil law,extending the subject of the guardian to all adults,fully embodies the humanistic spirit of contemporary civil law.However,this article is different from other countries or regions,such as Britain,the United States,Germany and Japan,which have developed a systematic and complete voluntary guardianship system,it has no special provisions on the duties and responsibilities of guardians.It is still based on the traditional legal guardianship theory,and the stipulated contents are relatively principled and not very operable.The lack of a complete supervision mechanism when the selection qualification,scope and mode of guardianship of the guardian under conscious guardianship are highly autonomous.At the same time,there is no clear stipulation on the nature and mode of undertaking of the agreed guardian's responsibility,which easily makes the system become a mere formality.Therefore,this paper believes that the research on the voluntary guardian responsibility should clarify the nature of its responsibility,and on this basis,determine the relevant responsibility of the voluntary guardian.At the same time,the supervision mechanism of the whole process of the performance of duties by the appointed guardians should be improved to ensure the best protection of the rights and interests of the guardians.This paper is divided into four parts and conclusion.The main contents of each part are as follows:The first part is about the problems and reasons of guardian responsibility.Firstly,the paper discusses the controversial issues in the theory of intentional guardian responsibility.Secondly,there are some problems in the content of voluntary guardianship.First,the agreement on guardianship does not clearly stipulate the content of guardianship,the second is to decide whether the guardian should bear the vicarious tort liability.Finally,the causes of these problems are analyzed in terms of legislation and theory.The second part is the judgment of the default responsibility of the guardian.First,the determination of the nature of the agreed guardianship agreement is the premise to determine whether the agreed guardian is liable for breach of contract.Through the analysis of the difference between the agreed guardianship agreement and the personal relationship contract,it can be concluded that the agreed guardianship agreement is a special entrustment contract,and the relevant provisions on liability in the contract law can be applied.Secondly,by referring to the treatment of service contracts for elderly care institutions in judicial practice,the author makes a judgment on the liability determination of the content of guardianship not clearly stipulated in the above agreed guardianship agreement,and believes that in this case,the ward should be determined to entrust all relevant guardianship affairs to the agreed guardian.Thirdly,it puts forward the corresponding way of bearing the liability for breach of contract.It needs to be pointed out in particular whether the spiritual damage compensation can be claimed in the lawsuit claim for breach of contract liability.The third part is the judgment of guardian's tort liability.Firstly,this paper analyzes the relevant concepts and theoretical scope of vicarious liability,and concludes that the "generalized vicarious liability",it includes the extension of one's own responsibility arising from the failure to fulfill the relevant duty of care and the vicarious responsibility to the third party in the narrow sense.Secondly,in view of the agreed guardian produced mostly does not have legal custody,in order to ensure the guardian's enthusiasm,should not be imposed a heavy responsibility,therefore the agreed guardian only by their responsibility.Thirdly,analyze the way of tort liability.The fourth part is to improve the supervision mechanism of the guardian's performance of duties.First,take full precautions in advance,make clear the qualification of the guardian and take notarization as the effective requirement of the agreement.Second,effective supervision in the course of affairs,adopting the dual track supervision mode of private and public power.Thirdly,it should be dealt with timely after the event,and the subject of the determined guardian responsibility should be standardized and sorted out,so as to timely investigate the liability when damage occurs.
Keywords/Search Tags:intentional guardianship, guardianship liability, breach of contract, liability for tort, supervision mechanism
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