Research On The Problems And Countermeasures Of The Law System Of Wills Guardianship In China

The system of testamentary guardianship existed in the Roman Empire as early as the ninth century BC and has been increasingly developed and perfected in other countries outside the territory.In the repealed General Principles of the Civil Law of the People’s Republic of China(hereinafter referred to as the "General Principles of the Civil Law"),China first established a testamentary guardianship system in the form of legislation.The system was retained in the subsequent codification of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),but unfortunately,it was only retained,and the provisions on the system of testamentary guardianship were still only a few words,too concise and without corresponding detailed regulation,and even if combined with the relevant civil legal norms in force in China,it still could not form a systematic and complete system of regulation This has led to a number of problems in the actual operation and judicial application of the system,which cannot fully achieve the original purpose of the system design and need to be adjusted and improved.The establishment of a testamentary guardianship system in China has enriched the connotation of the guardianship rights enjoyed by parents and facilitated the protection of the rights and interests of the ward.However,as far as the current state of legislation is concerned,the following problems exist: the application of testamentary guardianship is unclear,the scope and rights of the appointed guardian are missing,the scope of the ward is vague and his or her will is ignored,and the supervision mechanism of the testamentary guardianship system is not yet sound.Based on the premise of the actual situation in China,and with an extraterritorial perspective on the more mature testamentary guardianship systems abroad,we analyse the testamentary guardianship system in China and put forward the following suggestions for improvement: Firstly,the principle of the most favourable to the ward should be applied throughout the operation of the testamentary guardianship system to protect the interests of the ward.Secondly,to clarify that the testamentary guardianship system has relative priority among the various forms of guardianship,second only to parental legal guardianship.In the event of a conflict between the content of the will of the father and the mother,the subordinate priority should be decided according to the actual situation.Thirdly,it is recommended that the corresponding rights of the successor guardian,such as the right to claim remuneration and the right to resign,should be guaranteed.And the scope of possible successor guardians in testamentary guardianship can be limited by way of reverse exclusion.Fourthly,it is not advisable for China to copy foreign legislation and limit the guardians to minors.Instead,in accordance with the actual situation in China,adult persons without or with limited civil capacity should be included in the scope of protection of guardians under testamentary guardianship.Fifthly,it is recommended that China should establish a triple supervision mechanism for testamentary guardianship before,during and after the event horizontally,and create a three-in-one supervision model for state,social and personal supervision vertically.The first part of the paper focuses on the definition of testamentary guardianship,analysing the concepts and characteristics of the terms "will" and "guardianship" and comparing the testamentary guardianship system with other forms of guardianship that are similar to it in some ways,such as legal guardianship,guardianship by proxy of minors,and guardianship by proxy of minors.In the second part,the relationship between testamentary guardianship and legal guardianship and guardianship by proxy of minors is clarified;in the second part,the shortcomings of the existing testamentary guardianship system in China are explored in the light of the content of the legal norms and the operation of judicial practice;in the third part,the shortcomings of the system are taken as a starting point,and the testamentary guardianship system in overseas countries,such as Germany,France,the United Kingdom and the United States,are studied.The fourth part of the study focuses on China’s national conditions and explores the ways to improve China’s testamentary guardianship system,taking into account the current social and economic factors in China.Through the above four parts of the study,corresponding suggestions are made to improve the testamentary guardianship system in China.