A Study On Application Of Adulthood Intended Guardianship

Intended guardianship system is a new system in Chinese civil law,which involves two traditional basic problems of autonomy of will and protection of rights and interests.However,the importance of this system is not commensurate with the fact that only one article(Article 33)is used in The Civil Code of China to regulate this system,which leads to different understandings of the system in reality,and the problems of application arising from this need to be solved urgently.At the end of February 2022,the Supreme Court released the judicial interpretation of the General Principles of the Civil Code,This moves to a certain extent to alleviate the tension between the legislation and the richness of the intended guardship and the rich practice.However,it has not completely solved the problems existing in this system.Based on the judicial practice in China and the latest judicial interpretation,this paper analyzes the problems existing in the application of intended guardianship system in China and puts forward solutions.In addition to the introduction and conclusion,this paper is divided into four parts:The first part: the basic properties of the adulthood intended guardianship.Adult opinion is a concept relative to adult legal guardianship,and the greatest feature of the agreement is to respect the meaning of the party.In civil law,the behavior of establishing an intended guardianship belongs to the legal behavior of both parties,and it is a special commission contract.Many of the institutions of civil law have certain similarity to the adulthood intended guardianship,such as legal guardianship,commission agency,devise support agreement,but after analysis,the adulthood is fundamentally different from these systems,the system is not be replaced.The second part: Analyze the status quo and problems of adulthood planned monitoring systems in my country.Through the analysis of legislation,it can be found that the meantiguring and monitoring system has provided in my country’s "Civil Code" and the Law of the Elderly,which stipulates that it is too general,lacking the implementation rules,which gives the system to apply It’s a big difficult.Through the analysis of the current status,it can be found that the notary office has made great contributions to the normative applications of the merits and system,but due to the lack of implementation rules,there are many problems in applicability.Summary of legislation and practice,you can find concrete issues that the adulthood’s planned monitoring system in my country is applicable: First,the applicant is unknown;the second is that the supervision duties are unclear;third is the lack of supervision mechanism.The third part: Taking the problem-oriented adulterating adult monitoring system outside the domain.The merits of monitoring is the product of legal transplantation,and in the world,the country has the United States,the United Kingdom and Japan.Through the investigation of the US persistent agency system,the UK’s permanent agency system and the Japanese monitoring system,it can be found that in terms of the subject matter,the domain law has restricted the qualifications of the guardian,and the qualifications of the monitored people have expanded In terms of monitoring responsibilities,the domain law has been clearly listed in the rights and obligations of guardians;in terms of supervision mechanism,the supervision mechanism of domain foreign monitoring is perfect,and the proper intervention of public power can effectively curb the abuse of authority.These experiences provide a reference for our solutions.The fourth part:Based on local conditions and referring to foreign legal experience,this paper puts forward some suggestions on the application of adult voluntary guardianship system.Firstly,in view of the problem of unclear qualified subject,it is suggested that relevant guiding cases make a clearer explanation on the subject qualification of guardian and ward.Specifically,the guardian’s subject qualification should be limited and the guardian’s subject qualification should be expanded;Secondly,in view of the unclear guardianship responsibilities,it is suggested that when the Supreme Court issues relevant guiding cases,it should make a more detailed guiding explanation on the rights and obligations of guardians;Finally,in view of the weakness of the supervision mechanism,it is suggested to achieve two points in improving the supervision mechanism in the future: one is the combination of public supervision and private supervision,and the other is the joint development of supervision before,during and after the event.