The Study Of Adult Guardianship System

For a long time,the guardianship system in China only provides for the care of mental patients and the minors in legal norms.Therefore,the so-called adult guardianship in our country only refers to the guardianship of mental patients.With the promulgate of the "general principles of civil law",so many new regulations were published,and the adult guardianship system in our country has been further developed,In spite of this,there are still many problems left in the general law of civil law need to be solved urgently.In addition to the abstract,the full text can be divided into five parts.The first part,it points out the leak of "general principles of civil law" on the provisions of the adult guardianship system:The object to apply the adult guardianship system is linked with the behavior ability of the adult guardian,which was deprived and restricted excessively;the multi-level of the guardians' capability and the single legal guardianship settings in our country are not matched;Lack of declaration and publicity procedures for the adult guardianship,so as the means of publicity of the adult guardianship;The selection of the legal guardian is inappropriate and the responsibilities of the guardian are prescribed improper.In detail,the specific criteria of guardian selection is unknown,and the so-called "choose" is out of the question.The guardians are not given the right to refuse or resign,which may hit the enthusiasm of the candidates;The guardian perform their duties without detail guidelines and effective supervision,which may cause damages to the interests of the guardian;The guardianship revocation and recovery system are improper in terms of the subject,constitutive requirements and the scope of application.The second part,in view of the scope of the adult guardianship system,it suggest that we should decouple the guardianship from its behavioral capacity,and establish the system of adult guardianship for all those people who can not take good care of their own personal or property.The third part,it is suggested that we should change the single legal guardianship model to diversified legal guardianship model.And according to one's judgment level,we can set up monitor to those people without meaning to judge,curatio to those lack of meaning obviously and assisted to those lack of meaning slightly.Besides,the guardians,curators and assists were given different kinds of rights;Ii is suggested to establish a set of procedures and the registration procedures of adult guardianship to declare or publicize the start of the adult guardianship,in order to clarify the rights and obligations between the guardianship parties.The fourth part,it is suggested that the criteria for the selection of guardians and the provisions about the guardians' responsibilities should be perfected.It is also proposed to abolish the ways of pre-selecting the order and the number of the guardians,instead of respecting the meaning of the guardian,list the negative ones to be the guardian,at the same time,grant the guardian with the right of refusal in "justification" cases.In terms of the candidates,we need to clear the priority of natural person to be a guardian.In relate to the responsibility of the legal guardian,it includes the whole or part of civil agency,consent and revocation of the civic acts;We should supervise the guardians when they performing their duties,and set up the guardianship supervisor system,clarify the ways,criteria and responsibilities of supervisors through laws;To make the guardian fulfill their guardianship responsibilities better,it is suggested to perfect the system of revocation and restoration of guardianship.As for the former,we should disqualified the village committee and the neighborhoods' committees'(hereinafter referred to as the "two committees")to be a client in the lawsuit,and add the guardian and the temporary guardian to be clients in the guardianship lawsuit.We need to distinguish negligence with infringement,and make it clear that the dereliction of duty is not necessary be linked with the occurrence of harm results;For the latter,we should strictly limit the time and scope for applying the guardianship restoration system,and protect the guardians' right of deciding whether to recover the adult guardian's qualification,and make it clear that the object of the guardianship recovery system does not include the voluntary guardianship.The fifth part,the conclusion.When talking about the adult guardianship system,we should pay attention to the differences between the guardianship for adult and the guardianship for the minors in guardianship idea,specific measures and the guardianship principles.Based on the background of the publication of the general principles of civil law,this paper,through carding the regulations about adult guardianship system in China,points out the existing problems of the adult guardianship system,and puts forward the ways to improve it on the base of consulting the provisions in Germany and Japan on this issue.