Research On The System Of Voluntary Guardianship Contract

The promulgation and implementation of the Civil Code further confirms the intentional guardianship system,which indicates that the intentional guardianship system is receiving more and more attention in China.The realization of the intentional guardianship system needs to be carried by the intentional guardianship contract,which is an important document to guarantee the performance of the duties of guardianship by the intentional guardian when the ward lacks the capacity for civil conduct.However,the current laws and regulations are not complete in terms of the adult intentional guardianship contract and lack of specific and detailed provisions.In order to alleviate the new basic national conditions of the aging population,the establishment of the intended guardianship contract system conforms to the strong demand of modern society,but the current problems of the system will bring certain obstacles to its smooth implementation,so it is urgent to improve the system.Therefore,this paper takes this as the entry point,first based on the social reality of China,and investigates the beneficial experience of the relevant systems of representative countries outside the region,conducts a more in-depth study of the intentional guardianship contract system,and puts forward specific legislative suggestions for the improvement of the system.In addition to the introduction of the first chapter,this paper mainly includes the following four chapters to study the intentional guardianship contract system:The second chapter gives a brief introduction to the basic theory of intentional guardianship contract.It includes the concept,characteristics and nature of the intentional guardianship contract and the distinction between it and the legal concepts of entrustment contract,legacy support agreement and trust contract,and briefly summarizes the definition of the intentional guardianship contract.The paper describes the institutional value of the intentional guardianship contract from four aspects: making the voluntary autonomy go deep into the field of guardianship,alleviating the traditional pension crisis,protecting the interests of the vulnerable groups,and maintaining the transaction security,so as to form a basic understanding of the intentional guardianship contract.The third chapter elaborates the current legal provisions and existing problems of intentional guardianship contract in China.The current laws in China only have partial provisions on the subject,conclusion and effectiveness of the intentional guardianship contract,and there are some problems that need to be improved,such as unclear provisions on the qualification of the subject of the contract,imperfect stipulations on the conclusion,imperfect stipulations on the effectiveness,lack of specific provisions on the termination and imperfect supervision mechanism.The fourth chapter is the study and reference of the foreign intentional guardianship contract system.The first section examines the system of intentional guardianship contract in Anglo-American law system,mainly studying the American and British letters of sustained agency.The second section examines the intentional guardianship contract system in the civil law system,mainly focusing on the pre-care agreement in Germany and the arbitrary guardianship contract in Japan.The third section summarizes the experience of the overseas intentional guardianship contract system,which is of reference significance to China in the aspects of the establishment and effective requirements of the contract,the relationship between the rights and obligations of the subject,and the proper intervention of public power in supervision.The fifth chapter puts forward suggestions on the legislative improvement of the voluntary guardianship contract in China.Firstly,with regard to the subject system,we should expand the scope of application of the ward and refine the subject qualification of the guardian.Secondly,regarding the establishment of the system,the specific ways,necessary provisions and guiding provisions of the establishment are added.Thirdly,regarding the validity system,we should start with clarifying the effective requirements of the contract,introducing the judgment standard of meaning and ability,and supplementing the provisions of revocation and alteration of the contract.Fourthly,regarding the termination system,detailed provisions should be made on the reasons,legal procedures and consequences of the termination of the contract.Finally,regarding the supervision mechanism,the dual mechanism of private supervision and public supervision fully safeguards the lawful rights and interests of the guardians.