Research On The National Guardianship System Of Minors In China

In order to cope with the crisis of population aging and alleviate the pressure of population decline,China will fully open the three-child policy in 2022.While encouraging childbearing,the State shall pay attention to the growth of minors,the phenomenon of "giving birth without raising children" occurs frequently,and many families do not assume guardianship responsibility for minors.Since the promulgation and implementation of the Civil Code and the Law on the Protection of Minors,China has initially established a guardianship system with Chinese characteristics that is "based on family guardianship and covered by state guardianship",however,due to the influence of the traditional concept of excessive reliance on family guardianship and the imperfection of legislation,the role of state guardianship has not yet been fully brought into play.In order to match and synchronize with the new policy,we need to accelerate the pace of improving the national guardianship system for minors.Chapter II,"Basic Theory of the State Guardianship System for Minors",first clarifies the concepts of "minors" and "state guardianship",and minors refer to natural persons under the age of 18 without considering any other conditions.For state guardianship,this article adopts a broad sense,that is,state guardianship refers to the state using public power to intervene in family guardianship,and specific departments supervise family guardianship and directly act as guardians when necessary to supplement family guardianship.It then clarifies the nature of State guardianship,which is in fact a form of guardianship that is of both public and private law nature.Then,the contents of the system of state guardianship of minors are elaborated,including: the subject,the scope of the target,the activation method,and two different supervision mechanisms;It then shows that the purpose of establishing a state guardianship system for minors in China is to protect the legitimate rights and interests of minors,make up for the lack of family guardianship,and ultimately maintain social stability.Finally,the theoretical support of the system is discussed,including the theory of responsible government,the theory of welfare state and the theory of maximizing the interests of children.Chapter III,"Investigation and Analysis of the Current Situation of China’s National Guardianship System for Minors",first sorts out the existing relevant legal systems in China in the current legislative situation,which shows that China’s fragmented legislation has led to the content of the system being very scattered,the provisions are too principled,and the lack of operability,and the different legislative purposes of various laws make it difficult to coordinate within the system.In terms of system implementation,the state has continuously established and improved its supporting facilities and increased financial security,and the system has been more widely used in reality.However,through the collection and collation of three real-world cases,it can be seen that in practice,there are still prominent problems such as the lack of guardianship of left-behind children,the difficulty of discovering violations of family guardianship,and the difficulty of carrying out rescue work.Through reflection and summary,it is concluded that the fundamental problems of the system are mainly as follows:unclear subject,too narrow scope of application,too high threshold for start-up,and lack of necessary supervision system.Chapter IV,"Investigation of the State Guardianship System for Extraterritorial Minors",mainly examines the legislative system of "small guardianship" in Germany,the judicial-led state guardianship system in France,the guardianship system of family courts in Japan and the community service system and mandatory reporting system in the United States.Chapter V,"Improvement of China’s State Guardianship System for Minors",through the analysis of the current situation of China’s system and the excellent experience of establishing extraterritorial systems,first of all,it is necessary to clarify the main body of the national guardianship system for minors,and it is not appropriate to make villagers’ committees and residents’ committees independently the main body of state guardianship,and can only be used as an assistance organization of civil affairs departments,and it is necessary to make clear provisions for the specific responsible organs under civil affairs departments.In addition to the personal guardianship of minors,sufficient attention should be paid to the guardianship of their property,and China’s system in this regard is very lacking.Second,it is necessary to improve the intervention norms of the state guardianship of minors,which can be achieved by establishing and improving social reporting and mandatory reporting mechanisms and establishing the activation method of the state guardianship system for minors.Next,to improve the application of the national guardianship system for minors,it is first necessary to clearly distinguish between parental authority and guardianship,and then include some specific situations that the legal system ignores.Finally,it is necessary to establish a system of state guardianship supervision of minors,clarify the objects,subjects and responsibilities of guardianship and supervision,and make a clear distinction between the supervision of family guardianship and the supervision of state subrogation.