Study On Agreement Of Guardianship In China

At present,the number of elderly people living alone,adults with physical and mental disabilities and non-marital cohabitation has been increasing in Our society,and the traditional family-based guardianship model has been unable to adapt to the development of modern society.In order to meet and fit the social needs,China has gradually established the adult voluntary guardianship system.China's adult voluntary guardianship started from the law on the Protection of the Rights and Interests of the Elderly and was formally established in the General Provisions of the Civil Law.Voluntary guardianship gives adults the right to choose their own guardians.Adults can plan their future life in advance by signing agreements,and this kind of guardianship with preventive nature is more and more widely needed.Since the establishment of voluntary guardianship in China,the relevant legislation is still rough.As the core of the system of voluntary guardianship,voluntary guardianship agreement is the way for both parties to establish the voluntary guardianship relationship.Due to the nature of the guardianship relationship,the contract law cannot be fully applied,and there are no special provisions in the legislation.When the two parties sign the voluntary guardianship agreement,they cannot find the legal norms with clear guidelines,which leads to the practical dilemma that the voluntary guardianship system is difficult to apply.The purpose of this paper is to refine the relevant legislative provisions of the voluntary guardianship agreement so as to enhance the practicability of voluntary guardianship.This paper is divided into four parts.The first part is to define the meaning of the intentional guardianship agreement and other basic theories to lay a foundation for the following research.On the basis of the entrustment contract,the voluntary guardianship agreement is divided into general authorization agreement and single authorization agreement according to the different scope of authorization,and the principle that voluntary guardianship has priority over legal guardianship is established.The second part is to analyze the status quo of the legislation of the voluntary guardianship agreement and summarize the shortcomings of the legislationrelated to the voluntary guardianship agreement in China.The third part is to sort out the relevant legislative examples of extraterritorial agreement and analyze and extract the rules and theories suitable for China's national conditions.The fourth part is to improve the rules of the voluntary guardianship agreement to put forward practical legislative proposals.The scope of applicable subjects of the voluntary guardianship agreement is expanded,guiding provisions on personal care,property management and pre-medical instructions are added to the contents,the notarization and registration system of voluntary guardianship agreement is determined,and the establishment and effective requirements,changes and termination rules of the agreement are detailed.The purpose is to make the voluntary guardianship agreement operable,no matter it is static subject and content,or dynamic elements of establishment,effectiveness and termination,so as to achieve the unification of legislative purpose and implementation effect.