Research On The System Of Voluntary Guardianship From The Perspective Of Protecting The Rights And Interests Of The Elderly

With the rise of the human rights protection movement,the rights and interests of the elderly have attracted more and more attention from the international community.However,in our country,population aging is becoming more and more serious,which makes how to fully guarantee the legal rights of the old,especially the disabled old,become an urgent matter to be solved.Regarding this,our country stipulates the definite guardianship system successively in "Law on the Protection of the rights and interests of the Elderly","the General provisions of the Civil Law" and "the Civil Code".The application of the system in the elderly group has positive significance for respecting the will of the elderly and safeguarding the legal rights and interests of the elderly.But compared to other related legislation,there are still some problems in our country’s definite guardianship system of the elderly.In this context,it is necessary to further study and improve the voluntary guardianship system from the perspective of protecting the rights and interests of the elderly.This article will propose a legislative path to improve the guardianship system from the perspective of protecting the rights and interests of the elderly,by analyzing our country’s legislation and practice on protecting the rights and interests of the elderly,aiming at the problems of our country’s existing system and learning from other relevant theories and legislative experience of the system.In addition to the introduction and conclusion,this thesis mainly includes four parts.The first part is an overview of the intended guardianship system.This thesis introduces the concept and characteristics of the intended guardianship,the difference between the intended guardianship system and legal guardianship,entrusted guardianship and legacy maintenance agreement and the significance of the intended guardianship system to the protection of the rights and interests of the elderly,expounds the theoretical basis of the system,in order to have a general understanding of the intended guardianship system,to lay the foundation for the discussion of the following.The second part is to sort out the legislative and judicial practice of the system of determined guardianship from the perspective of the protection of the rights and interests of the elderly and summarize the focus of the system in the judicial practice.Based on the current legislative practice of our country,it is clearly understood that,although our country has made a remarkable achievement in guaranteeing the rights of the elderly with the prescribed guardianship system,there are still many shortcomings.For example,the unclear expression of the guardian’s qualifications,the lack of provisions on the content of the intended guardianship agreement and the conditions for its establishment and effectiveness,the lack of consideration of the self-decision of the elderly in the design of the guardianship responsibility system and the imperfect guardianship supervision mechanism and relief mechanism lead to the failure of the system to properly safeguard the legitimate rights and interests of the elderly,and the low application rate of the system.Part three examines the extraterritorial guardianship system and its reference significance for our country.Using comparative research to analyze the legislative profiles of relevant systems in civil law systems(including Japan,Germany and South Korea)and common law systems(including the United States and the United Kingdom),From the conclusion and effectiveness of the intended guardianship agreement,the qualification of the guardian,the content of the agreement,the intended guardianship supervision and the development of the assisting decision system in various countries and other multi-dimensional analysis of the foreign intended guardianship system with reference value,and from the relevant enlightenment to our country,as expected,the design of the intended guardianship system should be from the perspective of the elderly.The help decision is introduced to safeguard the real will of the elderly and strengthen the national public power to protect the rights and interests of the elderly.Part four describes some suggestions to perfect our country’s freewill guardianship system.The first is to highlight the protection of the rights and interests of the elderly in the legislative concept,which mainly includes respect for the rights and interests of the elderly,protect the rights and interests of the elderly person and property,and prevent the abuse of the guardian’s power of attorney.The second is to set up a system of specific requirements for the selection of guardians,such as stipulating in detail the qualifications of natural persons,clarifying the qualifications of social organization guardians and exploring the professional guardian system;The third is to strengthen the regulation of the conclusion and effectiveness of the intended guardianship agreement,that is,notarization as the establishment of the intended guardianship agreement,through the explicit effective time of the intended guardianship agreement and the guardianship as the effective conditions to improve the effective mechanism of the agreement,and establish the intended guardianship registration system;The fourth is to improve the content of the voluntary guardianship agreement,such as the content that can be agreed upon in the agreement,the matters that need special authorization,and the limitation of the guardian’s power of attorney.The fifth is to construct the mode of assisted decision in the voluntary guardianship of the elderly.The sixth is to clarify the necessity of guardianship supervision,the selection of guardianship supervisors and their duties,so as to establish a supervision mechanism before,during and after the event.