Research On Adult Guardianship System From The Perspective Of Civil Law

Adult guardianship system,an important legal system,began to gestate and form at ancient Rome.Then it developed slowly in the middle ages and modern times.However,in the mid and late 20 th century,the original specification supply in modern adult guardianship system cannot meet the needs of the people with physical and mental disability(the disabled),who,due to their physical function and mental capacity becoming decayed or even lost,which resulted in a decline in their civil capacity,lost the ability to live independently in the age when,with the continuous development of international human rights protection concept and the approaching of age wave,common people can live longer and the number of the elderly is increasing rapidly.In addition,the concepts were widely recognized by society,such as “respect on the right of self-determination”and “maintenance on the normalization of self-life ” proposed in the Convention on the Rights of Persons with Disability(CRPD),so that a major reform of the guardianship system was brought into many countries and regions around the world,where maintaining transaction security was gradually regarded as the center of the modern adult guardianship system in their domestic and regional legislation,ignoring the respect and protection of the mental capacity of the disabled,which was not conducive to the abolishment or amendment on the terms related to adult especially the elderly disabled integrating into society,while corresponding reforms are implemented from afar in Continental and Anglo-American law system,based on the common understanding of the protection of the interests of the disabled,so as to achieve the goal of “the modernization of adult guardianship laws”.There exist some defaults in our country's adult guardianship system,such as single guardianship,narrow scope of its application for guardianship object,the ignorance of the remaining mental capacity of guardianship object,the lack of guardianship supervision agencies or guardianship supervisor,the vacancy of matching relief procedures,severe lag of the institution supply of adult guardianship system behind the China's contemporary reality of rapid development.Fortunately,in the formulation process of civil code unity,many domestic scholars are committed to transplanting,exploring,interpreting and completing the various specifications in the adult guardianship system,taking General Principles of The Civil Law of The People's Republic of China as the representative.Preliminary achievements of the reform on our country's adult guardianship system are shown in the process of the legislature completing the specifications or the study of academic circles on the direction of its related sub systems.However,according to the analysis and investigation on the legislative cases in different countries and regions outside,through the comparison method and empirical experience,if we review and examine the present adult guardianship legislation and operation specification in our country,we'll find there exist many problems and wide gaps in such aspects of adult guardianship system in our country as position design,legislative model,interest coordination and conflict rules,from Britain,the United States,Japan,Germany and other countries.Based on this and through comparison,combing related researches of some domestic and foreign scholars,the author balances and then abandons those theories and views unsuitable for our country,and further puts forward some suggestions on how to construct and fill the system on the following aspects,such as legislation pattern design,adding related sub system specification,matched process relief and coordination between domestic adult guardianship legislation and international judiciary,with the hope that the results to be formed can have an actual effect on filling,overcoming and perfecting researches on our country's adult guardianship system.Based on domestic and foreign theoretical researches,this paper applies various methods,including literature research,value analysis,comparative analysis,historical research,empirical analysis and comprehensive analysis.This paper puts forward the existing problems in its introduction,and later systematically combs the theories set up in various kinds of adult guardianship systems.Furthermore,it fills and remolds the original theory,and then analyses and examines the legislative features of adult guardianship systems in some extraterritorial countries and areas.Besides,combining the development history of adult guardianship system in our country,it provides an overview of the present legislation situation of adult guardianship in China,analyses the problems in the operation,and puts forward some concrete suggestions,from the perspective of entity justice and due process,on structure design and specification filling of adult guardianship system.At the end of the paper,it also gives consideration to the coordination between domestic adult guardianship legislation and international judiciary in order to achieve unification of law and then avoid appearing any legal loophole.This paper is divided into six parts according to the ideas above.The first chapter is a part of introduction,starting from the definition of adult guardianship.This part puts forward the reasons for the research on adult guardianship from the following aspects: defaults of our country's traditional adult guardianship system,integration with adult guardianship legislation abroad,impact of age wave,impact of new idea about disabled welfare.Secondly,according to how to achieve disabled rights and interests,this part sums up the significance of studying the value of theoretical research and practice.Besides,this part,based on the survey of literature review at home and abroad,makes an overview of tendency and deficiency in domestic and foreign researches and then makes a list of research ideas,main contents and difficulties to be overcome in this topic.Finally,this part systematically introduces the methods of research in this topic.The second chapter,starting from the plight of defining connotation of adult guardianship,makes a division on similar terms such as the system of adult guardianship and of entrusted agency,maintenance,raising,and legacy support,thus pointing out the unique value of the adult guardianship system.Then this chapter points out the cause for establishing adult guardianship system on the following four aspects: the lack of natural person individual capability,an especial and detailed introduction of the lack and the judgment of mental capacity,the lack of sense of single family independent responsibility,the lack of national supporting system and financial support,convention on human rights for the disabled,etc.Finally,this chapter further brings in social transaction cost optimality theory and distributive justice theory to prove the necessity and legitimacy to establish the adult guardianship system.The third chapter by examining and analyzing adult guardianship legislation cases in Continental law system implemented in such countries as Japan,South Korea,France,Germany,Taiwan of our country and in Anglo-American Legal System in such areas as Britain,the United States,Canada,makes an eventual conclusion that these two systems both contain the same legislative idea and trend though their legislative mode and content are not identical in different countries and regions.The fourth chapter first introduces the historical evolution of adult guardianship in our country,especially on related legislation at the times of the ancient,modern and contemporary,and after the founding of the PRC.Then,this chapter analyzes the present situation and problems of our country's adult guardianship legislation,combining with General Principles of The Civil Law of The People's Republic of China.At the end,this chapter gives a detailed analysis from the respects of related specification omissions of the legal adult guardianship,the intended legislation vacancy of the adult guardianship,and the legislation blank of the adult guardianship concerning foreigners,mainly on the ambiguity and default in guardianship conflict rules and interest coordination rules.The fifth chapter firstly narrates that the structure of adult guardianship system in China should be set up in the Family Code,and then explores the differences in choice of legislative pattern between the legal guardianship and intended guardianship.Secondly,the paper puts forward some suggestions on filling and perfecting the corresponding substantive norms,procedural norms,conflict rules and interest coordination standards.Finally,this paper makes a preliminary study on the relevant rules of foreign adult guardianship.The sixth chapter,the part of conclusion makes a general summary and refine of the full text,as well as the innovative points in this paper.This part includes the confirmation of legislative regulations on the term "adult guardianship" and the clear interpretation on its connotation;our country's legal adult guardianship legislation mode should adopt the “4” +“1”mode,namely,personal guardianship,property guardianship,comprehensive guardianship,partial guardianship plus specific guardianship(or temporary guardianship),for Japan's three-types mode is not fit in our country due to the difficulty to determine mental capacity;this part elaborates the legislation direction and framework of the intended guardianship;qualitative problems of the guardian responsibility imputation principle;in the process of guardianship,this part introduces guardianship supervision and property trust system to avoid behaviors contrary to interests,etc.Finally,In the epilogue,the author points out the necessity of building a national public guardianship system in China and points out shortcomings of research in this paper,such as failure to analyze and investigate legislation cases in the adult guardianship system of Islamic law and its operation conditions.