Study On The Improvement Of The System Of Voluntary Guardianship In China

In 2017,the general principles of civil law was issued,and the provisions of Article 33 established the voluntary guardianship system in China.In the era of human rights,"respect for the right to self-determination","maintain the normalization of life",the principle of necessity and the principle of complementarity have become the theoretical basis and conceptual guidance of modern adult guardianship system.The system has both human value and economic value.It not only embodies the human care and social warmth of people-oriented and protecting the weak,but also reflects the careful consideration of maintaining market order and transaction safety and protecting the interests of the third party.For individuals,the system can make up for the shortcomings of the traditional guardianship system,fully respect the will of the parties,and respect the parties' residual meaning ability.For the society,the system can meet the needs of social pension,ease social contradictions and maintain social harmony and stability.It is precisely because of the function and value of the system itself that many countries and regions in the world adopt it and incorporate it into their own legislation.The aging of population is the social reality that our country is facing at present.The contradiction of social pension is prominent.In addition,with the deepening of the concept of human rights protection in the world,our country has established the voluntary guardianship system,which is a great progress of legislation,but the effect of system operation is not good.The system is only regulated by one principle article,which is lack of operability and is difficult to guide judicial practice,play its system value and meet social needs.There are three problems in the system: first,the legislative concept is relatively backward.Secondly,the legislative style is not scientific.Third,there is a lack of systematic institutional framework,which should be improved.Foreign countries have established the voluntary guardianship system asearly as several decades ago.It is worth learning from whether its legislative concept or system design.In this paper,the representatives of the common law system,the United Kingdom and the civil law system,Germany and Japan,are selected for comment,which can provide reference for China to improve the voluntary guardianship system.Its advanced legislative concept,legislative model and specific system design have certain reference significance.In order to improve the system of guardianship,we should start from three aspects: first,reconstruct the legislative concept and principles,introduce the assisted decision,and realize the transformation of the new paradigm of adult guardianship.Learning from the achievements of foreign reforms and combining with China's actual situation,we will complete the localization transformation.Second,to amend and improve the legislative style,on the one hand,we should distinguish adult guardianship and juvenile guardianship,and separate the legislative provisions.On the other hand,it is necessary to determine the legislation mode suitable for the actual situation of our country.Third,to construct the system framework of the voluntary guardianship system.Only from substantive law and procedural protection can we build a complete system framework.