Study On Legislation Of Adult Guardianship System

As an important system in civil law, adult guardian system has been burdened with the mission to protect those adults who lack legal capacity since Rome law. Traditional civil law system, however, always takes announcing system of behavioral capacity as the premise for setting adult guardian system, overly limiting one’s chance to determine his own affairs. With the development of aging of population and the update of sense of human rights, major countries (regions) in civil law system have sequentially conducted drastic amendments to their domestic adult guardian system since middle of last century, abolishing interdiction announcement system, expanding the application scope of adult guardian system. Regulations to measures of guardian have become more flexible and voluntary guardian system has been introduced on the basis of adult legal guardian system. China’s current adult guardian system are mainly in <General Rule of Civil Law>, sense of establishing the system as well as legal regime are far from scientific and specific contents are also not adequate with limitation by theory level and legislation skills. In practice, however, the number of aged and physically and mentally disabled people are in rapid growth so it is of high significance to reform China’s adult guardian system not only for protecting basic human rights of aged and physically and mentally disabled people but for maintaining the stability of our society.The main body of this article could be divided into three parts: the first part introduces fundamental theory of adult guardian system. It makes clear the concept and nature of adult guardian as well as the relationship between adult guardian system and behavioral capacity system with brief articulation of the origin and historical development of adult guardian system; The second part compares adult guardian system in Germany, Japan and Chinese Taiwan. It introduces specific content of adult guardian system after their reform including innovation of guardian philosophy, targets of application, diversity of guardian measures and intervening of public authority; The third part introduces China’s current adult guardian system, namely the historical development thereof, current situation of legislation and its drawbacks including outdated theories, unscientific legislation regime, lack of voluntary guardian, narrow scope of guardian targets, singularity of guardian level and lack of regulations on custodian of guardian. The fourth part raises suggestion to make up China’s current system targeting its drawbacks with reference to system in Germany, Japan and Chinese Taiwan: namely updating legislation, perfecting the legislation regime, introducing adult voluntary system and perfecting adult legal guardian system. The perfection of adult legal guardian system involves determination of guardian, the application system of adult legal guardian, stylization of guarding measures and consummating custodian on guardians.