Research On The Intended Guardianship System For The Elderly

Article 33 of the General Principles of the Civil Law of the People's Republic of China(hereinafter referred to as the General Principles of the Civil Law)promulgated in 2017 caters to the trend of the development of the world guardianship model.On the basis of inheriting Article 26 of the Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly(hereinafter referred to as the Law on the Protection of the Rights and Interests of the Elderly),the scope of the Persons have increased the beneficiaries of the intentional guardianship system,which reflects the respect and protection of human rights in our civil law.However,because the system is in the initial stage of establishment,the specific content lacks the corresponding supporting measures,many provisions are only rigidly implanted in the original legal guardianship framework,and the operability is not strong.The first is the establishment of intentional guardianship agreement.At present,the law only requires written form.Although Shanghai has explored the notarization of the system in practice,it still needs unified legal provisions.Secondly,the intentional guardianship system is too one-sided to judge the ability of behavior,ignoring the complexity of the elderly group,and the utilization rate of the system is not high in judicial practice.Whether intentional guardianship or statutory guardianship,the General Principles of Civil Law does not specify the specific content of guardianship supervision,but only wants to play a supervisory role through the guardianship revocation system.However,there are too many subjects exercising the revocation right and no specific rules of selection,which easily leads to the various subjects to shift responsibilities,the difficulty of proof in disputes,the lack of protection of the rights and interests of the elderly and other drawbacks.Therefore,the author believes that it is necessary to further improve the specific content of the intentional guardianship system through legislation to realize the real value of the system.The first and second parts of this paper briefly discuss the basic theory of the custody system for the elderly,mainly analyse its concept and characteristics,differences with other systems of civil law and value basis.The third part focuses on the analysis of the current situation of intentional guardianship in China,and summarizes the existing problems.Including:first,the scope of guardianship is too narrow,the qualifications of guardians are ambiguous;second,the content of intentional guardianship is not clear,such as the requirements for the establishment of effective conditions,rights and obligations of both sides;third,the lack of a supporting monitoring mechanism can easily lead to the failure of the purpose of the guardianship agreement,frequent occurrence of infringements and other issues.The fourth part focuses on the analysis of several representative systems abroad,such as British and American continuing agency system,German licensing system and Japanese arbitrary guardianship system.On this basis,it summarizes their experience and lessons,and puts forward measures to improve the situation of our country,such as defining the qualifications of guardians and registering them.As the effective conditions for the establishment of the contract,the specific conditions for the entry into force of the contract,and the establishment of a supervision system,I hope that through the improvement of the system,we can better protect the rights and interests of the elderly.