Research On The Adult Guardianship System

There is no concept of adult guardianship in China's current legislation.It is only a title of academic theory,and a new type of guardianship system corresponding to statutory guardianship.Article 26 of the law on the protection of the rights and interests of the elderly,revised in 2015,first introduced consensual guardianship for the elderly.The reason why it is stipulated is that more and more social problems of the elderly have emerged since China's entering the period of aging population.However,the traditional guardianship system can not deal with the new problems in practice,and the new international human rights theory of respecting the right of self-determination.Nonetheless,the scope of application of voluntary guardianship is limited and lack of practical operability.Article 33 of the general principles of civil law,issued in 2017,extended the scope of application of voluntary guardianship to all adults.For the first time,the system of voluntary guardianship for adults was established in the form of civil basic law.Compared with the previous legislation,it has greater progress and application space.However,its provisions on voluntary guardianship are still too principled,resulting in the lack of legal basis for the specific operation of the system The dilemma of lack seriously affects the function of civil code in guiding practical activities.As the core of adult voluntary guardianship system,adult voluntary guardianship contract is very important for the whole process of adult voluntary guardianship.The conclusion and effectiveness of the voluntary guardianship contract is the most important part of the system.However,the current legislation of adult voluntary guardianship in China does not cover the procedures that need to be followed for the establishment of the voluntary guardianship contract and the specific recognition standards for the effectiveness of the contract so that the system can not be applied in practice.In addition,the current relevant legislation of our country focuses too much on the obligations of the intended guardian and neglects the protection of its rights,fails to regulate the obligations of the ward,and does not involve the connection and application of the intended guardian and the external legal guardian,so it cannot provide specific guidance for the applicable subject.In addition,in the current adult voluntary guardianship system of our country,the supervision mechanism of voluntary guardianship is not perfect,which not only highlights the phenomenon of mutual prevarication between guardianship and supervision subjects,but also lacks the provisions of specific responsibilities of supervision subjects and the whole process supervision of guardianship.In view of the relatively sound provisions of the adult guardianship system in foreign countries,China can learn from the mature legislative experience of foreigncountries and the specific practice of adult guardianship in our country,and improve it from the aspects of the conclusion and effectiveness of the adult guardianship contract,the distribution of rights and responsibilities of the parties to the voluntary guardianship,and the construction of the supervision mechanism of the voluntary guardianship.In the aspect of conclusion and effectiveness of guardianship contract,it needs the proper intervention of public power to conclude guardianship contract through notarization procedure,and the notarization institution shall conduct substantive review on the contract,so as to clarify the specific recognition standards for the effectiveness of the contract;In the aspect of internal rights and responsibilities distribution between guardians and guardians,it is necessary to adhere to the combination of autonomy of will and limitation of law,so as to balance the rights of both guardians responsibility relationship.In terms of the connection and application of the appointed guardian and the external legal guardian,we should respect the right of self-determination and practice the specific rules of the priority of the appointed guardian in exercising his rights and performing his obligations;In view of the problem that the supervision mechanism of voluntary guardianship is not perfect,we should build a supervision mechanism combining private supervision and public supervision,follow the principle of maximum protection and minimum intervention,play the main role of the voluntary guardianship supervisor,clarify the division of responsibilities of public supervision,and realize all-round supervision before,during and after the event.