The Positioning And Regularizing Of Guardianship

The present Chinese guardianship legal system is built on the plannedeconomy era and is still acting now. However, it is already out-of-date.The lack of positioning and regularizing affects the harmonious operationof society.From the basic concept and nature of guardianship, this thesisanalyzes the pros and cons of the current guardianship legal system andexplores the positioning of the guardianship legal system. This thesisconfirms the current system design. Meanwhile, the author, in an effortto solve the problems existing in the guardianship legal system, alsoresearches the principles and methods of regularizing.The first part of this thesis is mainly to solve the problem ofguardianship positioning. Firstly, it analyzes basic concepts andcharacteristics of guardianship and points out that it refers to thesystem built by the country to supervise and protect persons lack of civilcapacity. Secondly, this thesis, with reference to the basic attributesof the civil rights and obligations and civil interests, researches theattributes of rights obligations and object of guardianship and confirmsthat the guardianship rights are the combination of absolute rights and relative rights, as well as the combination of dominant rights and rightof claim. This thesis suggests to use the different ways to regularizethe different kinds of rights. It also points out the issue of boundarybetween rights and obligation and then puts forward the resolutionmeasures.The second part of this thesis, starting from the concept of interest,firstly studies the richness of its connotation and extension. Secondly,it confirms the methods and principles of the interest measurement thatapply to minors and adults. They are "the principle of maximum interests"for minors and "the principle of interests protection" for adults thatis based on the richness and conflict of adult social roles and the conceptof human rights. In order to solve the positioning and regularizing ofdifferent types of guardianship, specific types of guardianship are thenanalyzed:(1) The relationship between parents and minor children inguardianship; it is recognized that their interests have consistency andthe principle of maximum interests the minor children shall be confirmed,the thesis suggests that parents shall face the growth of civil capacitywith growth of their minor children and shall respect the will and choiceof their minor children;(2) The role overlap of spouse and guardian; thethesis puts forward solutions to conflict of relationship between husbandand wife and guardianship; it points out, when the conflict of rights andobligations occurs, the marital autonomy shall be respected; the thesisholds that marital autonomy shall outweigh guardianship obligationsbecause the precondition for a spouse acting as a guardian is the existenceof marriage relationship that shall not be affected by guardianshipobligations; the thesis also analyzes the nature and performance of theright to terminate marriage by the person under guardianship;(3) Researchon school’s guardian status; the thesis points out that generally schoolis not in the status of guardian, instead, there is a kind of education management relationship between the school and the students; the thesisalso clarifies that the school, as a legal person having the capacity forcivil rights and civil capacity, can accept guardianship upon entrusting;the thesis further analyzes the guardianship duties, the managementresponsibility and the liability for breach of contract of school whenacting as guardian upon entrusting.