On The Problems And Countermeasures Of China's Intentional Guardianship System

The intentional guardianship system means that the guardian selects the guardian for himself in advance when he has the ability of interest,and entrusts the personal care,property management and other matters to the guardian in writing.After the guardian loses or partially loses his capacity for civil conduct,the guardian follows the guardian The willingness to handle guardianship matters is in accordance with the civil legal system agreed by both parties to perform guardianship duties,and it takes the spirit of respecting the right to self-determination and maintaining the normalization of life as the spiritual core.With the increasing aging of the population,the weakening of the family's elderly care function,and the traditional civil guardianship system has not adapted to the needs of social development,which has led to the formal establishment of China's intended guardianship system.The system has undergone a legislative process from scratch in China.It has the significance of progress while facing the problem of low judicial application rate.On the one hand,traditional thinking has restricted the applicable space of intended guardianship,and the concept of "raising children and preventing old age" It still occupies the mainstream,on the other hand,the system is a new type of system,not known to the public,and the system itself is not complete and lacks practical operability.Its actual dilemma is manifested by the unclear substantive and procedural elements of the intended guardianship contract,the absence of the intended guardianship supervision mechanism,and the unclear way of the intended guardianship rights relief,which greatly reduces the effectiveness of the system in actual operation.Due to the shortcomings of the intended guardianship system in our country,we have to conceive of a sound and perfect system under the premise of theoretical support and extraterritorial experience.The theory of civil contract provides the basis for the establishment of intended guardianship.The guardianship contract,which is an important part of intended guardianship,is the main basis for the exercise of guardianship.The theory of supervision provides guarantee for the implementation of intended guardianship and prevents the abuse of power in the form of supervision.The theory of right relief provides a remedy path for the infringement of guardianship rights and realizes the effective connection between damage and relief.Whether it is the DPA system in the United States,the EPA system in the United Kingdom,the anti-aging authorization system in Germany,or the arbitrary guardianship system in Japan,all have evolved with the development of the times The gradual improvement of a more mature institutional system,and its experience in the development process is worthy of reference for our country.Based on the theoretical foundation and extraterritorial experience,it provides a direction for the improvement and perfection of China's intended guardianship system.From the point of view of the guardianship contract,clarify the qualifications and rights and obligations of the subject of the contract,add multi-level guardianship protection measures for the intended guardianship,determine the establishment and effective requirements of the intended guardianship contract,and improve the notarization and registration requirements for the intended guardianship contract.From the perspective of guardianship supervision,a supervision mechanism combining public supervision and private supervision and combining pre-event and post-event supervision has been formed.From the perspective of right relief,the comprehensive relief of the guardian and guardian is realized.By perfecting and improving China's intended guardianship system,the aim is to make the system better serve the public.