On The Termination Of The Adult Voluntary Guardianship Contract In China

At present,the trend of population aging in our country is becoming increasingly obvious.A single legal guardianship system can hardly meet the needs of the current situation.Therefore,based on the actual situation in our country,and on the basis of drawing lessons from the foreign legislation,General Rules of the Civil Law,in Article 33,formally introduces the system of adult voluntary guardianship(hereafter referred to as “the System”).In terms of the current legislative situation in our country,however,the provisions related to the System are simple and principle,and as an important carrier of the System,the adult voluntary guardianship contract(hereafter referred to as “the Contract”)is still blank in the legislation.So that,this article intends to find out the possible specific problems that may exist in the termination of the Contract by analyzing the relevant provisions in General Rules of the Civil Law and the Contract Law,and propose the concrete idea of the termination of the Contract in our country from the two aspects of entity and procedure,on the basis of applying the method of legal interpretation and learning from the experience of foreign legislation,which made it operable in practice.Apart from the introduction,the article consists of four parts.The first part demonstrates the legitimacy of article 36 and article 39 of the General Rules of Civil Law as the normative basis for the termination of guardianship relationship,and clarifies the possibility of applying the above normative basis for the System.On the other hand,it analyzes the specific problems that may exist in the application of the above normative basis for the termination of the System from the two aspects of entity and procedure,according to the different characteristics of the System from those of other guardianship systems.The second part mainly discusses the influence of the termination of the voluntary agency on the Contract.According to whether the Contract takes effect or not,it discusses emphatically whether the ward can withdraw their agency,whether the guardian can resign their agency,and whether the Contract is terminated because of that.Before the Contract takes effect,whether it is the withdrawal of the agency by the ward,or the resignation of the agency by the guardian,is actually a form of expression of the right of termination exercised by the parties to the Contract.After the Contract is effective,the ward has no right towithdraw the agency,and the guardian may only resign the agency with the permission of the court if there is a legitimate cause,so that the Contract is terminated.The third part mainly analyzes the specific problems that may exist in the application of the relevant provisions of the Contract Law for the Contract is terminated.In terms of an exercise of agreed right of dissolution contract,the ward may exercise it by delegating the right of termination to a third party,but the guardian can only terminate the Contract with the permission of the court.As for the reasons of legal rescission,the rupture of the trust relationship should be regarded as one of the statutory reasons for the Contract termination,and compared with the general continuous contract,the standard that determines whether the trust relationship between two parties in the Contract is rupture should be lowered.As for the exercise of the right of termination with out any reason,it should be different according to whether the Contract takes effect or not.Before the Contract takes effect,both parties have the right to terminate the Contract,after that,the guardian may only terminate the Contract with the permission of the court if there is a legitimate cause.The fourth part mainly provides some suggestions about how to set up the termination system of the Contract in our country from the two aspects of termination reasons and termination procedures,based on the integration of the relevant provisions in General Rules of the Civil Law and the Contract Law.