Study, Based On The Custody Of The Contract

Guardianship institution is an important part in the civil law, which supervises and protects personal rights, property rights and other legal rights of person who has no or limited disposing capacities; it aims to protect the legal rights of person who has no or limited disposing capacities. In traditional civil theory, the guardian is founded on the basis of parental power, relation of paternity exists between guardian and ward, therefore, the duty of guardianship should be executed by guardian himself, other person can not be a substitute. With the complexity of the modern society and accuracy of the labor division, it is difficult for a guardian to execute all duties of the guardianship under many circumstances, when a guardian can not execute the duties because of special obstacles, he will be admitted to authorize part of the duties to other person in order to protect the ward's interests, which also means that the right of guardianship can be transferred to other person through contracts. Currently, under the tendency of the aging of population, endowment agencies develop rapidly, more and more guardians transfer the right of the guardianship to the endowment agencies through contracts, and the latter undertake the duties of the guardianship for person who has no or limited disposing capacities. The endowment agencies obtain part of the right of guardianship, which undertake the care and protection of the old person. However there are also many disputes between the guardians and endowment agencies. It is difficult to distinguish legal relationship and responsibilities of both sides.The countries or areas belonging to the continental law system, such as Germany, Swiss, Japan, Russia and Taiwan, have relative regulations about authorized guardianship. In China the authorized guardianship is provided in Article 22 in the Views on General Principles of Civil Law of the People's Republic of China, but it is just the norm in principle, like "the duties of guardianship can be authorized by guardian", many issues, such as specific content of authorized guardianship, legal position of the parties are not provided accurately, which cause many disputes in reality.From the view of the modern old-age system, this thesis probes into the right of guardianship on the basis of contracts thoroughly, discusses its nature, concept and conditions, and distinguishes similar, confusing concepts. By comparison and analysis for guardianship legislation in countries belonging to the continental law system, the legalization of origin of the guardianship on the basis of contracts is discussed and proved, which is helpful to understand the legal position, rights and obligations of the endowment agencies, and provides the clues to understand the liabilities that the endowment agencies should take. There are five chapters in this thesis:Chapter One is on the background and tendency of the modern old-age system. Because the modern old-age system is the core of this thesis, it is important to discuss the tendency and nowadays situation of that. Development of the endowment mode proves the fact that endowment agencies obtain the right of guardianship for person who has no or limited disposing capacities through contracts has existed.Chapter Two is on the generalization of the right of guardianship on the basis of contracts. From the common concept and nature of guardianship, the guardianship on the basis of contracts is generalized and analyzed. Contract guardianship refers to, when guardian can not execute the duties of the guardianship; he can assign the whole or part duties to the trustee through contracts in order to protect the ward's interests. The qualification of the guardian is not assigned with the duties, the relation between guardian and trustee is some kind of contract relation, the duties of the both parties are stipulated in the contract.Chapter Three is on the discussion for the legalization of the origin of the guardianship on the basis of contracts. From the Roman law to the current continental law, whether the duties of the guardianship can be authorized is changing. Although in the development, different countries demonstrate their own social characters, on the whole most countries admit that the guardianship can be authorized.Chapter Four is on the comparison and analysis for the content of the right of the guardianship in the legislation of the different continental countries. By analyzing the code of the civil law of the different countries belonging to the continental law system, such as France, German, Italy and Japan, the common concept is obtained, which includes personal care, property management and agency of civil juristic act.Chapter Five is on the legal liabilities of the endowment agencies in contract guardianship. The endowment agencies have no qualifications of the guardian, who mainly undertake the contract obligations, therefore, when the disputes occur, the institutions bear the liabilities for breach of contract. Although in the general academic theory, the doctrine of liability fixation of liabilities for breach of contract is doctrine of no-fault liability, the author holds that it is more reasonable to use presumed-fault doctrine for the endowment agencies.