Legislation And Practice Of Assisting Decision System In China

Supported-Decision Making corresponds to Substituted-Decision Making,which means that when a person has a cognitive disability(such as mental disability,(Such as mental decline,dementia,etc.),with the support of assisting people,can make decisions on daily life matters,property management matters,medical treatment matters,etc.,according to their true will,instead of making decisions on their own behalf.The United Nations Convention on the Rights of Persons with Disabilities(hereinafter referred to as the "CRPD")has established a new paradigm for adult custody-a system of decision-making assistance.On June 26,2008,the Standing Committee of the National People 's Congress recognized and ratified the application of the Convention in our country.As one of the parties to the Convention,China should gradually abolish the full adult guardianship system with a substitution decision as its core and gradually establish a new aid recognition system.A new paradigm of guardianship for people with intellectual disabilities to realize self-help.The decision assistance system emphasizes that persons with cognitive impairment are not deprived of their ability to perform because of physical or psychological disabilities.Under the traditional system of declaration of lack of capacity,China's existing adult guardianship system is still a substitute decision system,that is,the existing guardianship system is still characterized by "deprivation of self-determination",which is established to maintain social public order.It runs counter to the idea that the guardianship system originally intended to protect the interests of the guardian from infringement.With the development of an aging society and the continuous expansion of the LGBT community,more and more people have emerged with new choices and attitudes in dealing with matters related to cognitive impairment.In the context of China 's civil law and judicial practice,the practice of assisting the decision-making system only occurs in private voluntary organizations and some notaries.Medical advance directive agreement is one of the widely used assistance decision measures in China.This article analyzes,compares and studies the legislation and practice of assisting the decision system in China.Mainly by comparing and summarizing China's current guardianship system and related legal norms,the court's decision on the declaration of lack of capacity,and the practical experience of our society in assisting the decision system,we analyze and study the challenges and obstacles that China may face in assisting the decision practice,dialectically reflect on the practical path of the introduction and application of the assistance decision system in China and consider the addition of the assistance decision system,and put forward practical and feasible suggestions for the gradual transition of the traditional guardianship to the assistance decision system in China.The first part of the article provides an overview of the assisted decision system,which lays a theoretical foundation for the discussion of the application of the assisted decision system in China.After sorting out and analyzing to help determine the connotation,characteristics and specific manifestations of the system,it is compared with China's adult guardianship system,and the limitations of the existing guardianship system are analyzed.The second chapter discusses the legitimacy and rationality of China's application of the assisted decision system: First,as one of the parties to the United Nations Convention on the Rights of Persons with Disabilities,China should fulfill its international obligations for the transformation of the paradigm of new adult guardianship;In essence,it is an alternative decision.The existing guardianship system does not meet the requirements of the human rights protection concept,and the existing adult guardianship system must be amended.Third,there is a practical need for an assisted decision system in China.The third part discusses the legislative and practical dilemma of assisting to decide in our country.The fourth part is the reflection and perfection suggestions on the adult guardianship system in China.This part uses the methods of horizontal and vertical comparison.Firstly,it combines the foreign legislation and practice of assisting in decision-making,aiming to extract the feasible practical experience according to the national conditions of our country,perfect the adult guardianship system in our country,and provide the development direction for assisting in the decision-making system.Secondly,analyze the connection and progress of the assisted decision system with China's existing guardianship system,and dialectically discuss the introduction of the assisted decision system in our country and the addition of the assisted decision system in the context of China's civil law in order to discuss the reasons for the early introduction of our country And improve the feasibility of assisting the decision system.Finally,combined with the existing social practice experience,the preliminary design of the practice path to assist in the decision.