Reflection And Reconstruction Of The Elderly Guardianship System In Our Country

With the tendency of the social population aging in our country at present stage,combined with the collapse of family endowment function degradation,social endowment pressure is growing.How to protect the rights and interests of the elderly,respect for the elderly on the basis of self-determination,to solve the problem of social endowment in China at this stage become the primary social problems we have to face.People gradually began to seek legal support in existing legal system,but we find that the system such as legal guardianship system,can not protect normalization of the elderly's life on the basis of respecting self-determination.Through the study of relevant laws abroad,China in 2012 revised the "People's Republic of China Rights and Interests Protection Law".The law was formally implemented in July 2013.Article 26 of the newly revised Law on the Protection of the Rights and Interests of the Elderly has established the system of guardianship of the elderly for the first time,which means that: the elderly with full civil capacity can elected the guardian in their close relatives or others close to their own or organization,who have will to bear the responsibility of guardianship.The guardian shall bear the guardianship duty in accordance with the law when the elderly are incapacitated or partially deprived of their civil capacity.This amendment is important for respecting the self-will of the elderly and safeguarding the legitimate rights and interests of the elderly.It is a major breakthrough in our legislation.On March 15,2017,article 33 of the General Principles of Civil Law provides that an adult who has full civil capacity can determine his / her own guardian in writing with his or her close relatives and other individuals or organizations who are willing to act as guardians.The guardians shall perform duties of guardianship when the adult is lost or partially deprived of civil capacity.At this point,the guardianship system in the civil law level formally established,and this can be described as another major innovation and progress of our legislation.However,through comparative study of foreign advanced legislation,we can find that there are some loopholes in the current guardianship system.First,there is no detailed regulations on the maintenance of the contract.Second,the provisions of the supervision and supervision system are missing.At last,the provisions on the applicable relationship between the system of guardianship and the existing statutory guardianship system are lacking.As being old is everyone has to go through,the elderly is the most important and most consistent with the characteristics of the system.To the elderly guardianship by agreement system as the starting point for the study,it is significant for the improvement of China's adult custody system.Therefore,this article through examining the advanced legislation of foreign countries,and being combined with the characteristics of the elderly,puts forward a series of perfect measures to the shortcomings of the current system of adult guardianship,such as the detailed provisions of the supervision contract,the establishment of monitoring and supervision system and so on.It is hoped that the improvement of the guardianship system for the elderly will make some constructive comments on the comprehensive establishment of the adult custody system in China.