Research On The Problem Of Guardianship Designated By Will In My Countr

Article 29 of the Civil Code of the People’s Republic of China provides for a system of designating the guardian by a will,which meets the need for parents with guardianship rights to designate a guardian for their children under their own guardianship by a will during their lifetime,enriches the guardian selection mechanism,ensures to the greatest extent possible the stable continuation of the parents’ philosophy of education,protection,and care for their children,and helps to better safeguard the interests of the ward.However,the existing legislation on the system of designating the guardian by a will in China is highly principled and weakly operational,resulting in disputes relating to the system of designating the guardian by a will occurring in practice.The establishment rules,effective rules and supporting measures of the system need to be further improved,have largely hindered the effective functioning of the system of designating the guardian by a will.Although the Interpretation of the Supreme People’s Court on Some Issues concerning the Application of the General Provisions of the Civil Code of the People’s Republic of China,which will come into effect on March 1,2022,can provide some guidance for solving the above problems,there is still room for further discussion in the case of refusal by the designated person or objection of one of the existing parents to testate guardianship.In most foreign countries,only minors are subject to guardianship under the system of designating the guardian by a will.In terms of rules of establishment,each country explicitly gives either parent the right to designate a guardian,while the UK extends the scope of designating the guardian by a will to any guardian.In terms of the rules of validity,Germany and France have adopted a system of negative qualifications which excludes those who are unsuitable to be designated guardians and expressly gives the designated person the right to refuse the designation at that point.It is generally accepted that the designation of the guardian by a will of a later deceased parent is valid.The designated guardianship by a will and legal guardianship of a surviving parent can co-exist in the UK.In terms of procedural rules,many countries allow the public authorities,represented by the courts,to intervene in the designation of the guardian by a will,providing institutional safeguards in terms of the examination of the validity of the will,the determination of the eligibility of the designated person,and others.In terms of supporting systems,a system,which centers around the right to request remuneration and the right to resign,has been formed to protect the rights and interests of the designated person.Besides,a court-centered monitoring system has been set up to monitor the performance of the designated person’s duties.Drawing on the relevant experience of the typical countries with this system,and taking into account the realities in China,it is necessary to conduct an academic analysis of the system of designating the guardian by a will.Firstly,the academic structure of the system should be rationalized from the legal act theory.It should be made clear that the legal relationship between the two parties,namely the designation of the guardian by a will,is established by“mutual consent.”The design of the system should be based on the“assumption of mistrust,”with a series of rules to govern and supervise the designated guardian.Secondly,the legislative concept of “being most favorable to the ward” should be clarified.The system should be designed with the basic consideration of“whether the ward is of age,” with a differentiated system to be designed.To address the existing problems of the system of designating the guardian by a will,improvements should be made in the following aspects: firstly,to clarify the rules of establishment of the designation of the guardian by a will,to explain the subject of establishment and to add the restrictive right of the designated person to refuse,and to clarify the form of a will in the establishment;secondly,to perfect the effective rules of testator appointed guardianship,to set negative criteria for the eligibility of the designated guardian,to address the issue of order in case of conflict between the designation of the guardian by a will and the legal guardian,and to clarify the procedural rules for the designation of the guardian by a will to ensure its smooth implementation.Finally,it is also necessary to fill the supporting system for the designation of the guardian by a will in China,refining and strengthening the duties of the guardian and adding the designated guardian’s right to request remuneration and resign,as well as promoting the supervision of social guardianship,establishing a supervisor for the designation of the guardian by a will,and supervising the public power guardianship.