Research On The Construction Of The Adult Guardianship Supported Decision-Making System In China

In the general concept of people,it seems that adults with disabilities naturally have relatively fewer rights than normal adults,and they are not regarded as individuals who can make decisions independently,and such a concept is taken for granted However,it just reflects the embarrassing situation caused by the weakness of the adult's social status and even the legal status.The rights of adults with disabilities are not well protected by law,and individual self-will is easily overlooked.In this case,the purpose of the adult guardianship system in China is to protect the rights and interests of adults with disabilities through active intervention.The method is based on the premise of depriving the adult with impaired behavior,and setting up a guardian for the adult with impaired person to replace the adult with impaired person to make a decision to protect their own interests.The traditional adult guardianship system uses deprivation of capacity as a means,and the substitute decision-making as the protection method.The basic idea behind it is to protect transaction security and personal interests by actively intervening in private autonomy.Article 12 of the United Nations Convention on the Rights of Persons with Disabilities(CRPD),which entered into force in 2008,provides for "equality recognition before the law" and requires States parties to ensure that persons with disabilities have equal recognition of their personality before the law and take appropriate measures,such as to provide assistance when necessary to ensure people with disabilities have equal legal capacity as others.China joined the United Nations Convention on the Rights of Persons with Disabilities(CRPD)in 2007.Based on the contracting obligations of the contracting states,we should ensure that Article12 of the Convention on the Rights of Persons with Disabilities and related provisions are concretely implemented in China's adult guardianship legislation.However,the guardianship system established by China's “General Principles of Civil Law”through 17 articles basically inherits the custody system(incapacitated)guardianshipsystem that has been abandoned by the civil law system,which continues the typical substitute decision-making,and no supported decision-making is applied.The substitute decision-making has resulted in not only obvious legislative flaws in adult guardianship,but also many problems in the corresponding judicial practice.China has entered an aging society in 2000,and the elderly group far exceeds the group of mental patients,but the existing types of behavioral ability and the guardianship system have been unable to respond appropriately.It is now at the stage of compilation of the Civil Code.It is here to discuss the specific application and construction of the assisted decision system in China.And it is of great significance for the improvement of adult guardianship and the construction of the assisted decision system.This article uses Article 12 of the Convention on the Rights of Persons with Disabilities as the starting point.Through the interpretation and analysis of Article 12 of the Convention and related provisions,the concept and characteristics of supported decision-making are clearly defined,and in conjunction with extraterritorial legislation to supported decision-making,analysis the concrete application of the model in practice makes sufficient theoretical preparation for the future construction of the system in China.This article is divided into four parts.The first part is to sort out the specific concepts,characteristics and principles of the supported decision-making,so as to lay a solid understanding for the reader before discussing the specific application of the supported decision-making.The second part focuses on the legislation and judicial status of adult custody substituted decision-making in China.Through the analysis of the current legislative provisions and the review of typical judicial cases,it summarizes the specific problems existing in China's legislation and judicature,and analyzes the existing existing shortcomings of the substituted decision-making for the protection of persons with mental disorders at the legislative and judicial levels.In the third part,the author aimed to turn her research focus outside the region,summarized and analyzed the countries that have supported decision-making in determining relevant legislation outside the region,including Canada,the United States,Germany,and Sweden,and analyzed the system of extraterritorial supported decision-making,with a view to introducing supported decision-making to China in the future.The fourth part is the author's analysis of the substituted decision-making that is still generally applicable in China.Through the analysis of the current situation of socialaging and the summary of the problems in judicial practice cases,based on the experience of extraterritorial legislative experience,the author assists in establishing a supported decision-making system in China.Specifically,it covers the scope of application of the system,the subject,rights and obligations,and the supervision organization.