On The Deficiency Of Capacity For Civil Conduct

Since the 1950s, In order to more effectively protect the incapacitated person's right, the new ideas of "respect for the right of self-decision" and "normalization of life in the maintenances of himself"were introduced by the foreign countries, these countries pay more attention to the system of civil capacity deficiency, and the functional capacity standard and due process which use to measure the civil capacity of the proposed ward are improved. The new adult guardianship system of these countries all indicate the new legislation trend, more respects and portents the human rights. China is with a large population base and with fast aging, so the situation of fast aging of the population is extremely grim and the incidence of a disease of mental illness ascends rapidly. However, the system of civil capacity deficiency in our country is not integrated and has some limitation and the standards and due process which use to measure the capacity of the incompetent adults were not expressed the new concepts such as "respect for the right of self-decision" and so on. This paper attempts to analyze the shortcomings of our system of civil capacity deficiency and provide some significance of substantive rules and theories by introducing the definition and measure standards of the legal system in the United States.Apart from the introduction and conclusion, the main part consists of five parts and a total of around 37000 words.Part I:Generalization, this part discussed the definition and constitutive elements of the deficiency of civil capacity, and the relation between the capacity of self-determination and civil capacity deficiency.PartⅡ:Analyzing the regulations of the deficiency of civil capacity in the history, analyzes the Roman origins of this and which were described in the civil law and common law of the major countries.PartⅢ:This part describes the measure standards of civil capacity deficiency, the main standards include the Causal link model; the Uniform Probate Code model(UPC model); Outcome model; Status model; Neuropsychological assessment model; Functional evaluation model. From above, we draw the conclusion that the functional evaluation model applies for the new concepts.PartⅣ.This part describes the application of the system of civil capacity deficiency on the adult guardianship. This part can be divided into three parts:the measurement process of the proposed ward; the guardianship kinds of the incompetent adults in the Uniform Guardianship and protective proceedings Act; the function of judge and lawyer in the measurement of the capacity of the proposed ward.Part V:This part reviews china's current law system and analyzes the advanced foreign legislative experiences. The successful experience is important inspiration and reference for the reconstruction and perfection of Chinese law system.