The Research On Voluntary Guardianship Contract

The voluntary Guardianship has been established since the Law on Protection ofRights and Interests of Seniors. Unfortunately, the Contract of VoluntaryGuardianship has no specific provision in our Law system so that it is necessary tointerpret the established law to deal with the related problems resulted from voluntaryGuardianship contract. Compared with general contracts, the voluntary guardianshipcontract has some particularities that its validity is based on when the person losesfull or part capacity for civil conduct so there are many differences in the conclusion,content, efficacy and termination of contract of voluntary Guardianship. This thesistakes Japanese Arbitrary Guardianship Contract as reference and tries to find out howto achieve voluntary Guardianship through voluntary Guardianship contract bycomparative study and legal interpretation.As the core of voluntary guardianship, voluntary guardianship contract has nodifference with commission contract in nature and content because it does not causeany change in status relationship. Voluntary Guardianship contract is establishedwhen the person has full capacity for civil conduct and will take effect when theperson lose part or full capacity for civil conduct, which is called ‘Future’ Contract.Nevertheless, the period is uncertain from the establishment to the taking-effect ofcontracts and in case that the person distrusts and refuses the guardian with he gettingolder and older and reasoning ability descending, before the conclusion of voluntaryguardianship contract, authorized representation contract should be signed beforevoluntary guardianship contract taking effect, in order to make the both parties keepin touch and when conditions permit, the voluntary guardianship contract comes intoforce, which called ‘convertible’ contract. In order to guarantee the true will of partyA and justification of contract, the notary public should be presented whenconcluding voluntary contract.According to Chinese Law, only senior citizens could establish a voluntaryguardianship contract, which narrows the range of crowd who should have the rightof concluding a voluntary guardianship contract, so that the law should be perfected to let other crowds, under special conditions, be entitled to the right of concluding avoluntary guardianship contract. In the contract, besides the details of guardianship,both parties should decide the supervision towards guardianship to make up thedeficiency of a legal supervision mechanism, which can be seen as the legalsupervision.As for the validity of voluntary guardianship contract, the person underguardianship should be in a condition of losing full or part capacity for civil conduct,which is a legal condition and should be identified by law. Besides the formalguardianship and affairs after the person under guardianship, the guardian has theright of re-consignment, which is based on the safeguarding of the interest of theperson under guardianship.The termination of voluntary guardianship contract has many reasons, theexpiration of agency, the death of one party, the loss of full or part capacity for civilconduct of the guardian, the recovery of the principal and the agent exempted fromduties by the court. Additionally, basing on the particularity of voluntaryguardianship contract, if the principle wants to terminate the contract, the contract canbe terminated at the will of principle before the contract takes effect but when it does,the termination need to be justified.