Research On The Improvement Of Adult Voluntary Guardianship System In China

The guardianship system originated from the interdiction system of ancient Rome law.With the increasingly severe aging trend and the progress of the concept of protecting human rights,countries have gradually put forward the consensual guardianship system for adults in line with their own national conditions,while China has been using the traditional legal guardianship method.Various investigations and studies show that the traditional legal guardianship mode has been unable to adapt to the current situation of our country.In this context,the adult discretionary guardianship system was added to the general principles of civil law promulgated in 2017,which opened the way of innovation of our country's guardianship system.Before the promulgation of the general principles of civil law,the relevant provisions of the law on the protection of rights and interest of the elderly on the voluntary guardianship system for the elderly have embodied the value concept of respecting self-determination advocated by the international community,but its scope of application is relatively narrow,which can only be applied to the elderly who have lost or partially lost their capacity for behavior over 60 years old.The general civil code draws on the relevant provisions of the law on the protection of the right and interests of older persons and extends its application to all adults.However,the system of adult guardianship still shows the characteristics of framework and principle,the content is relatively empty,the corresponding supporting system is lack,and it is not fully applied in judicial practice.Starting from practice,this paper makes a systematic analysis of the relevant provisions of the adult voluntary guardianship system: first,the starting conditions of adult voluntary guardianship are obviously unreasonable.According to Article 33 of the general principles of civil law,the beginning of voluntary guardianship is marked by the declaration of capacity,but once the guardian is declared,he will become a person without capacity for civil conduct or with limited capacity for conduct,and will no longer have the corresponding residual capacity for will.The voluntary Guardian will completely replace the guardian to make a decision,which is in line with the international community's advocacy of "respect for self",Second,the application order of voluntary guardianship and legal guardianship is not clear.When the two guardianship modes conflict,who has the priority applicability and the legislation is lack of provisions.Third,the guardianship mode of adult voluntary guardianship system only has one type of guardianship,but the residual meaning ability of each ward is different,and the guardianship mode applied by each person should not be In the same way,guardianship should only be applied to the kind of guardians who are totally incapable of will and behavior;in addition,there are no relevant provisions on the rights and obligations of guardians and guardians,and there is no specific scope of responsibility for the subject,and the parties cannot arrange their own relevant acts in accordance with the provisions of the law;finally,the implementation of adult determined guardianship system The supporting system in is not specific,neither the establishment,effectiveness and termination conditions of the intended guardianship contract are regulated,nor the relevant notarization and registration systems are regulated,and the supervision system is in a missing state.In view of the shortcomings of the system of adult voluntary guardianship in China,combined with the relevant concepts of the system of adult voluntary guardianship in China,this paper attempts to put forward specific suggestions for improvement.It includes adopting guardianship declaration instead of capacity declaration system,making clear the priority of application of consensual guardianship,adding two types of guardianship: partial guardianship and assistance guardianship,making clear the rights and obligations of consensual guardianship and ward,and adding the implementation supporting system of consensual guardianship system.In a word,the development of every legal system has to go through the process from immaturity to maturity,and the system of adults' voluntary guardianship is no exception.By analyzing the shortcomings of the current adult guardianship system in China,and then put forward relevant practical suggestions to improve our legislation,so as to promote the development of the adult guardianship system,and make the system to a higher level.