Research On The Testamentary Guardianship System In China

Testamentary guardianship is one of the ways to set up guardianship,which means that parents with guardianship qualifications appoint guardians for their children by making a will.General principles of civil law of the people's Republic of China implemented on October 1,2017(hereinafter referred to as "general principles of civil law")Article 29 stipulates that "if the guardian's parents are guardians,a guardian may be appointed by will." This is the first time in civil law of our country to stipulate guardianship by will,which affirms the legal status of guardianship by will in our country.The regulation makes up for the lack of guardianship types in China and improves the guardianship system to a certain extent.However,in the past three years since the implementation of the general principles of civil law,the system of guardianship appointed by will has gradually revealed its shortcomings while playing its positive role.Due to the weakness of legislation,the lack of many specific legal rules,the lack of judicial interpretation to be refined,the lack of operability,unable to fully respond to the needs of judicial practice.Therefore,it is very important to make a detailed analysis and Research on the system of the designated guardianship of the will and put forward legislative suggestions to improve the system of the designated guardianship of the will in China.The main body of this paper is divided into the following four parts.The first part is the theoretical analysis of testamentary guardianship system,ncluding the interpretation of the concept and characteristics of the designation of the guardianship of the will,the definition of the nature,and the analysis of the applicabl Including the interpretation of the concept and characteristics of testamentary designated guardianship,the definition of its nature,and the analysis of the elements of the current testamentary designated guardianship in China.These provide a solid theoretical basis for the improvement of the system.The second part is the analysis of the current situation and problems of testamentary guardianship system in China.At the legislative level,the development process and relevant laws and regulations of testamentary designated guardianship system in China have been sorted out completely.At the judicial level,the cases in the trial practice are examined by types,and the typical controversial issues are analyzed.On this basis,it summarizes the existing problems in the system of testamentary guardianship,It mainly includes: the scope of the guardian is vague,the rights of the appointed guardian are missing,the effective elements of the appointed guardianship are missing,the effectiveness is unclear and the supervision mechanism of the appointed guardianship is lacking.In the third part,we study the testamentary guardianship system from the perspective of comparative law,analyze the outstanding legislative cases of foreign countries and summarize and draw lessons from them,so as to examine the existing system in China from a broader perspective.In the fourth part,based on the previous comparative analysis,the author puts forward specific legislative suggestions on the testamentary designated guardianship system from the following aspects: guiding principles,subject scope and rights,application effect,establishment method and content,and guardianship supervision.It is expected to improve the guardianship system of testamentary appointment in China.