| The establishment of adult freewill guardianship system is an important breakthrough in the process of civil law codification of our country,and it is also an active response to the legal problems appearing in the process of our aging society.However,what is not commensurate with its importance is that there is only one provision in Article 33 of the Civil Code stipulating this system,and there is a lack of corresponding legislative provisions on many key issues such as the subjects scope,what the rights and obligations the intended guardianship should have,the registration and publicity of the guardianship contract,the supervision mode and the supervision subject.This leads to different understandings of adult voluntary guardianship system in practical application.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 clearly defines the right to arbitrarily terminate adult voluntary guardianship agreement and the supervision method of adult voluntary guardianship,but the rights and obligations,procedural provisions and supervision mechanism existing in the application process of adult voluntary guardianship system have not been properly solved.By studying legislative status and judicial cases and referring to foreign mature system experience,this article makes clear that there are three problems in adult adult guardianship system: unclear rights and obligations,lack of procedural provisions and imperfect supervision mechanism.Aiming at the unclear rights and obligations of both guardianship parties,this paper puts forward some suggestions to clarify the scope of guardianship from the legislative level and realize the "decoupling" of civil capacity and guardianship.Learn from the system experience of the United States,Germany,Japan and other countries,standardize the qualifications of the subject of guardianship and determine the rights and obligations of both guardianship parties.Aiming at the lack of procedure,based on the national situation,analyzes the functions of the departments of our country,and establishes the system of registration,inquiry and notice of the guardianship contract.In view of the imperfect supervision mechanism,putting forward some suggestions from supervision mode,supervision subject and supervision subject’s responsibilities. |
