| As a new type of guardianship system,testamentary guardianship has received a lot of attention from legal practitioners due to its special characteristics.The system of testamentary guardianship was first set out in a separate article in the General Provisions of the Civil Code introduced in 2017.Since then,in order to reflect respect for the wishes of the ward and the protection of his or her interests,the Civil Code has likewise followed the provisions of this system.Although,this has made up for the deficiencies of China’s guardianship system in civil legislation and has provided a strong guarantee of the rule of law for the protection of the person,property and other legitimate rights and interests of the children under guardianship.However,with the development of society,the advancement of technology and the increasing awareness of civil rights,the current system of guardianship still fails to meet people’s demand for testamentary guardianship.To improve the testamentary guardianship system,a well-thought-out analytical path should be established.Firstly,we analyse the evolution of the testamentary guardianship system and the deep-seated legislative philosophy behind it,so as to lay a solid theoretical foundation for the improvement of the testamentary guardianship system.Then,the current situation of China’s testamentary guardianship system will be analyzed in the context of both legislation and justice.At the legislative level,the relevant legal provisions are systematically sorted out;at the judicial level,the relevant cases arising in judicial practice are analyzed in a diagrammatic manner.Finally,on this basis,it is concluded that the following problems exist in China’s current system of testamentary guardianship: firstly,the scope of application of testamentary guardianship is difficult to determine.For example,it is not clear whether testamentary guardianship can be applied to adults,and whether testamentary guardianship can be applied to heterogeneous artificially inseminated children and fetuses among minors;secondly,the elements of testamentary guardianship are still vaguely defined in terms of the scope of "father and mother",the subject qualification of testamentary guardians is difficult to determine,and the intention of the testator and testamentary guardian is not clear;thirdly,the rights and obligations of testamentary guardians are not clear.Thirdly,the lack of rights and obligations of the testamentary guardian;fourthly,the lack of private supervision of testamentary guardianship and the absence of public supervision.The reason why there are so many problems with China’s testamentary guardianship is that the current testamentary guardianship system in China is too principled and lacks specific legal provisions.Therefore,there is an urgent need to take the following effective measures to improve China’s testamentary guardianship system and protect the legitimate rights and interests of vulnerable groups in practice.Firstly,from the perspective of comparative law,drawing on the successful experience of relevant systems in foreign countries and taking into account China’s specific national conditions,the scope of testamentary guardianship objects should be clarified.In the testamentary appointment of heterogeneous artificially inseminated children,the husband of the biological mother should be given the right to appoint a guardian for his children through a will;it should be made clear that fetuses and adults can be the objects of the testamentary guardianship system.Secondly,to improve the elements of testamentary guardianship.In terms of defining the scope of "father and mother",stepparents do not enjoy the right to appoint a guardian by will;in terms of determining the qualification of the subject of the testamentary guardian,natural persons and organization meeting certain conditions can act as testamentary guardians;in terms of clarifying the expression of intent of the testator and testamentary guardian,the testator and testamentary guardian’s expression of intent are structured Thirdly,the rights of testamentary guardians will be regulated.Thirdly,the rights and obligations of a testamentary guardian are specified.Specifically,in terms of rights,the testamentary guardian is given the right to request remuneration and the right to resign;in terms of obligations,an inventory of property and a report on the development of the minor are produced to strengthen the obligations of the testamentary guardian.Fourthly,to improve the dual guardianship supervision mechanism combining public and private interests.With a meticulous analysis and in-depth study of China’s testamentary guardianship system,it provides a strong guarantee of the rule of law for the good operation of the system in judicial practice. |
