| Adult guardianship system is an ancient civil law system, the earliest in Roman law. Today, it is written in the legislation of most countries. In the present legislation in our country, in the second section of the second chapter of the "general principles of the civil law of the People’s Republic of China" (hereinafter referred to as the "general principles of the civil law") mainly stipulates the principles of adult guardianship. Due to the reform and opening-up policy and the implementation of one-child policy, the social concept, population structure and family set-up in our country have changed a lot. The idea of respect and protection for the disabled is universally recognized by the public and the aging trend is more and more obvious. In response to this series of new situations, our country urgently needs to reform the existing adult guardianship system. On account of the fact of our country, after analyzing the adult guardianship systems of the typical countries in the two laws system and summarizing the experience of legislative reforms in different countries, this paper aims at giving suggestions for the improvement of our adult guardianship system.The main part of this paper consists of four chapters.The first chapter will introduce the basic theory of adult guardianship system, which mainly includes the concept, property, function and category of guardianship system and the adult guardianship system.The second chapter will discuss the history and status quo of our country adult guardianship system, which mainly focuses on analyzing the defect in our current adult guardianship system. In the first section of this chapter, the author simply introduces the historic development of our country adult guardianship system. There are four historical periods for the development of our adult guardianship system. They are the deficiency under the influence of ancient patriarchal thoughts, the rudimentary stage under the influence of modern Western culture, the development after civil rights awareness in the period of the Republic of China and the backwardness under the influence of planned economy after the foundation of the PR China. We conclude some experience through the analysis of the history. In order to improve our adult guardianship system, we need to consider both the change of ideas and concept and the social fact; we need to pay attention to not only carry forward our own experience, but also use the experience of other countries for reference. The second section of this chapter will introduces the current legislation of our adult guardianship system, which mainly elaborates the pattern of legislation and system structure, including the subject, content, establishment and termination of the adult guardianship system. As for it, we hope to have a clear understanding of the status quo for our adult guardianship system. The third section of this chapter will conclude and analyze the legislative defects of our current adult guardianship system. It can be seen that the current legislative ideas are too stale; the guardianship type is single; the applicable scope is too narrow and the supervisory mechanism is not complete. Hence, the adult guardianship system needs to be completed and improved at the legislative level.The third chapter is the comparative study of the legislation about adult guardianship system in other countries. By looking at the typical legislative reforms of adult guardianship system of different countries in civil law system and the Anglo-American law system, it’s not difficult to find out some similarities in the background of legislative reforms in different countries. With the problem of population aging and the enhancement of human rights consciousness and human-based concept, different countries urge for repealing the provisions that violate the protection of human rights and deprive the rights of the disadvantageous people. Due to the legislative defects in the old system, a large number of adults need guardianship are still not well-protected, even though the guardianship system has been set up for it, it is apparent from actual effects that the legislation cannot play the expected results. Given this, the common practices of all countries are to renovate the legislative idea, expand the scope, increase the type of adult guardianship and build up the supervisory organization for adult guardianship. We get some enlightenment after doing the comparative study. As we are confronted with the problem of aging population, the stipulation about adult guardianship in current legislation is not able to cope with the challenge and the change of social structure. The historical background for the reform of adult guardianship system in two different law system shares some similarities with the status quo of our adult guardianship system, so it is necessary and important to use the experience of other countries for reference. In this regard, to improve our adult guardianship system, we should change and renew the ideas and concepts for adult guardianship system; we should seek to diversify its guardianship type; we should strengthen the public rights to call for the joint effort of the country and society; we should add and assure the supervision and safeguard of adult guardianship system.The forth chapter is about the deliberation for the improvement of our adult guardianship system. This chapter aims at resolving the legislative defects. The first section discusses about the necessity of the improvement of our adult guardianship system. From the analysis of the social idea, the structure of household population and the operation effect of current system, the stale legislative ideas of our adult guardianship system are no longer compatible with the international human rights and the social ideas of our country. The current adult guardianship system cannot play the expected results in the juridical practice, and its legislative defects are no longer consistent with our social structure, so there is real and great necessity to improve our adult guardianship system. The second section elaborates the suggestions about the legislative style of our adult guardianship system. After learning from the common practice of the countries in civil law system and considering the future compilation of the Civil Code of our country, we conclude in this paper that the guardianship system should be written in the Family Volume of Civil Code. The third section provides suggestions about the basic principles of adult guardianship system. Looking at the legislation of Britain, America, Germany and Japan, and combining the legislative ideas like "the respect and protection of human rights ", "the respect of the right to self-determination of the wards", "to help the weak participate in the social life like the normal", it is considered that the basic principles of adult guardianship should take in the principles of the least restriction, the best interest, the presumption of the mental capacity and the principle of complementarily. The forth section is suggestions about specific contents for the improvement of our adult guardianship system. In the aspect of improving adult guardianship types, using the common practice of two different law systems, it is advised to structure normal guardianship system in our country; in the subject of adult guardianship system, it is suggested that the applicable scope of the wards need to be increased, the qualification of guardian needs to be clear and definite and the supervisory organization should be set up; in the guardianship services, this paper will discuss about it from the guardian’s rights, obligations and responsibilities, which has considered the experience of legislation in other countries and the succession of our own legislation; in the alteration and termination of adult guardianship, learning from foreign legislations, this paper will propose some improvement suggestions to the alteration and termination of adult guardianship.Many predecessors have been studied the improvement and perfection of our adult guardianship system, and for sure there will be more and more people pay their attention to this question. With little talent and less learning, I shall know that it is unavoidable to have some omissions. The paper hopes to broach the subject and welcomes criticism from experts and readers. Through the study and deliberation of our adult guardianship system in this paper, I have learned a lot and hope that it can be of help to complete and improve our adult guardianship system. |
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