Effectiveness Of Intended Guardianship

With the promulgation and implementation of the "General Principles of the Civil Law of the People's Republic of China"(hereinafter referred to as the "General Principles of Civil Law"),China has officially established China's adult sense of custody.As a new legislation,in the case of only the principled provisions,its application faces many unclear issues that need to be explained and expounded,so that it can be effectively applied in practice.In the face of the arrival of China's aging society,the intentional guardianship system has been applied as soon as it is effectively implemented,and it has become increasingly popular and accepted in the Shanghai area.The "Regulations on the Protection of the Rights and Interests of the Elderly in Shanghai" has attempted to improve this,and the establishment of the intended guardianship needs to be notarized to achieve the protective role of the public authorities.However,there is a lack of legislation in the specific implementation process of the intended guardianship system,especially the intentional guardianship contract as a kind of entrustment contract,the problem of whose entry into force has not been reasonably resolved.Article 33 of the General Principles of Civil Law only expresses the beginning of the performance of the guardian by “the guardian begins to perform his duties”,but does not regulate the effective time of the establishment of the entrusted contract such as the intentional guardianship contract.From the nature of the intentional guardianship contract,the effective date of the contract shall be decided by both parties,that is,according to the agreement.However,this will face the problem of a guardianship system,that is,whether the application of the guardianship system is based on the custodian's restriction or incapacity.Judging from the historical evolution of China's guardianship system legislation,the application of the guardianship system is necessary for the loss or partial loss of capacity of the guardian.Otherwise,the person who violates the full capacity cannot represent the right to conduct the identity.If understood and applied by this,the system of intentional guardianship is a system based on the autonomy of civil law.It only gives the ward the right to choose the guardian,and does not realize the respect of the ward after the guardianship is established,which will make it a principled one,not an institutional level.Investigating the extraterritorial law,in the design of the system of intentional custody,it is often built around how to protect the meaning of the ward,whether it is a “uniform” country represented by Germany or a“diversified” country represented by Japan,and In the Anglo-American legal system,the “continuous agency” system has increasingly emphasized how to achieve the autonomy of the ward,not just the guardian's selection,because our country lacks procedural and institutional systems.The difference is that the diversified design of the intended guardianship system itself needs to be achieved through the entry into force of the intended guardianship contract.Firstly,the paper begins with the nature of the intentional guardianship contract,then analyzes the dual attributes of the guardianship relationship with the agency relationship,and analyzes the specific meaning of the guardianship to show that the performance of guardianship duties does not only mean the beginning of comprehensive supervision.In the intentional guardianship contract,the principal also has an authorization act and can personalize the scope of the authorization.Therefore,the guardian(trustee)must fully respect the ward's(principal's)declaration of will when performing guardianship duties and external civil law acts.This is also the basis for the realization of the transition from the alternative guardian to the assisted guardian.That is,the relationship between the guardian and the ward is the general principal-agent relationship.The difference between the guardianship and the agent is only the difference between the authorized content,that is,the difference between the proxy and the guardianship.Therefore,the understanding and application of Article33 of the General Principles of Civil Law is directly related to the realization of the value of the intentional guardianship system,especially the interpretation of the intentional guardianship contract.The second chapter is the core part of this paper.This chapter attempts to start from the shortcomings of China's guardianship system,in order to realize the modern concept of closer to the intentional guardianship under the existing guardianship system in China,that is,from comprehensive supervision to partial supervision(typed),from the alternative to the assisted type of custody,flexible application of the intentional custody contract system,around the autonomy of the will to establish a multi-level assisted custody system,the key of which is the choice of the effective mode of the custody contract.Furthermore,through the induction and analysis of the legislation on the effective supervision of extraterritorial intentional custody contracts,it can provide a model for the entry into force of China's intentional custody contract,and compare the key to the choice of various modes.Finally,from the perspective of willing autonomy,choose the effective mode that can respect the ward's will and apply to different degrees of incapacity,supplemented by a certain registration procedure to make up for the lack of supervision mechanism.That is,the intentional guardianship contract is effective when assistance is needed,and the scope of the guardianship is divided in the content of the contract.When the principal has some obstacles and cannot complete his own affairs independently,the intentional guardianship contract begins to take effect,giving them partial rights such as agency rights,so that the guardian can assume different roles in the performance of the contract to assist or assist in the completion of the client's affairs,until the client has partial incapacity or total incapacity.Such application does not require excessive legislative changes.It can only be achieved through judicial interpretation or guidance documents.The key is to provide a basis for practice to make the intended guardianship system more flexible.