| In recent years,with the development trend of miniaturization and low birthrate in China,the proportion of empty-nest,solitary,lonely elderly people has risen sharply,and the problem of old-age care has become not only an internal family problem,but also a social problem that needs to be dealt with urgently in China today and even in the future.The adult voluntary guardianship agreement is an important civil system arrangement that conforms to the requirements of the times and alleviates the problems of the elderly and the social problems of the elderly in China.From the perspective of legal structure,it is based on the basic principle of private law autonomy,giving the ward the right to freely choose the intended guardian.The new guardianship model of the client and the intended guardian reaching a consensus,and the guardian manages and cares for the client de facto,legally or both when the client is disabled and dementia,which can play a significant role in alleviating the thorny problem of the elderly population.However,at present,although Article 33 of China’s Civil Code stipulates the adult intentional guardianship agreement,the problems exposed in the specific implementation show that there are still many areas for improvement and refinement in the relevant legal provisions.Through the examination of the current situation of China’s legislation and judiciary,and the investigation of relevant legislation and practical experience outside the territory,this paper intends to put forward some suggestions for improving the adult guardianship agreement in China.The body of this article consists of four parts.The first part mainly introduces the concept and nature of adult intentional guardianship agreements,and explains the characteristics of adult intentional guardianship agreements.By learning the relationship between adult voluntary guardianship and adult legal guardianship,it is clear that adult voluntary guardianship attaches importance to the right to self-determination.Finally,the necessity of the concept of private law autonomy under the compulsory intervention of the state is discussed,and the important guiding role of this concept in the smooth development of the agreement is clarified,so as to lay a legal foundation for the subsequent interpretation of the agreement and the establishment of public guardianship institutions.The second part mainly introduces the specific problems in legislation and judicial practice of adult intentional guardianship agreements.China’s judicial practice has begun to take shape in handling cases of adult intentional guardianship agreements.At the legislative level,there is a lack of targeted regulations on adult intentional guardianship agreements,and there are many unreasonable provisions in Article 33 of the Civil Code,which only stipulates that there are many unreasonable provisions on the requirements for the establishment of the agreement,the requirements for the client’s capacity to act,and the time of effect.Due to the special effective mode of the agreement,the traditional commission contract cancellation system cannot meet its needs,so it is urgent to improve the applicable norms of the agreement.The third part mainly introduces the experiences of countries with high levels of aging and advanced guardianship systems in the two major legal systems.In the past,Japan had a low usage rate of arbitrary guardianship contracts due to the registration requirements for prohibited and quasi prohibited production;The United States does not attach high importance to the implementation of public power supervision agreements,which often leads to the abuse of agency power in practice;The experiences of successes and failures in different countries are worth learning from.The fourth part mainly introduces the suggestions for improving the adult intentional guardianship agreement in China,and makes special treatment of the agreement according to the special features of the agreement.First of all,clarify the rules for the establishment and effectiveness of the agreement,and establish targeted rules for the termination of the agreement.Secondly,determine the basic content of the agreement,clarify that agents involving important medical authorities must be specially authorized,and then emphasize the intervention of individuals,society,and state forces in adult voluntary guardianship agreements.Finally,it emphasizes the use of existing notary resources to strengthen the role of adult intentional guardianship agreements in China’s aging society. |
