Study On Trust Substituting Property Guardianship

The Civil Code has vague provisions on the property management rights of guardians.Article 35 only limits the property of guardians by saying that "the property of guardians shall not be disposed of except for safeguarding the interests of the guardians",and there is no common restraint rule for behaviors involving the major interests of the guardians in comparative law.Even in the intentional guardianship with principal-agent structure,there is a great risk of infringing the interests of the guardianship.Therefore,the legislative status of the guardian’s authority is too broad,causing great hidden trouble to the property security of the guardianship.Although the guardianship law has established the principle of "respecting the true will" and the principle of "the best interests of the guardianship",there is no detailed description of the judgment standard of the interests of the guardianship,and there is no basis for how to explore the inner truth of the guardianship.The absence of the guardianship supervision system exacerbates this risk.At the same time,modern property management requires the active investment of the guardian,and the guardian seems to be entitled to a wider range of property rights,which leads to the contradiction between the guardianship risk and the practical needs.When facing this problem,the legislation trend of using trust system to support property guardianship appears in foreign law.The nature of guardianship has been disputed for a long time in the academic circle of China,but in the common law system,trust and guardianship have the same property of fiduciary relationship,and the guardian and the trustee have the same fiduciary duty and responsibility,which lays a jurisprudential foundation for the functional coupling of the two systems.The reform of guardianship law in the global scope also promotes the transformation of the comprehensive guardianship model to the partial guardianship model.The concept of self-determination clearly requires encouraging and respecting one’s affairs planning before his or her ability is impaired.The unique functions of the trust system,such as risk isolation,freezing of the client’s will,financial planning and relief means,provide strong support for the property security of the subject.This paper focuses on the institutional arrangements of the United States,Japan and Chinese Taiwan in the field of fiduciary custody.The living trust in the United States focuses on reserving great trust rights to the trustor so as to realize flexible arrangement of guardianship matters and play the role of guardianship substitution.Special needs trusts focus on supplementing the social welfare of the ward.The Japanese guardianship system support trust is characterized by the active intervention of the family court,and there is a strong color of public supervision in the establishment and operation of the trust,in order to cope with the special situation of the decline of the ability of the guardian.The nursing trust and the trust for physical and mental disorders in Taiwan of China integrate the property management and personal care,supplemented by the trust supervisor to supervise the performance of the trustee’s duties,and in practice,there are disputes over the trust entrusted by the court.The construction of the substitution of trust for property guardianship in Our country has the basis of current law,but there are also some obstacles,such as the guardian’s trust right,the conflict between testamentary trust and testamentary rules,and the imperfect trust supervision system.Besides private interest guardianship supporting trust,we can also learn from the special needs trust in foreign law to establish government-led protective trust,and strengthen the supervision of trust affairs by introducing trust supervisors.