On The Improvement Of Adult Guardianship System In China

The adult guardianship system is an important civil legal system.With the rise of the human rights movement,the adult guardianship system has been revised in order to adapt to the arrival of an aging society.Because of the differences in history,economy and culture,the legislation of advanced countries presents different characteristics of personality,and there are some common features.Borrowing the advanced experiences in legislation of developed countries,the adult guardianship systems are greatly revised in China's General Principles of Civil Law,including the enlargement of guardian scope,the diversity of guardian types,the addition of temporary guarding,the deletion of guardian qualification of units,the maximal adherence to the true will of the client him/herself,etc.,which marks its progress and the peculiarities of the era.Currently,the legislation of guardianship system presents the situation that the General Provisions of Civil Law coexists with the Opinions of Civil Opinion and General Principles of Civil Law,and the law is applied according to the principle that the new law is superior to the old law.In addition,the "Law on the Protection of the Rights and Interests of the Elderly" and the "Mental Health Law" have the provisions of the rules.However,the adult guardianship systems have not been perfect yet,including the qualifications of the guardian to be defined,the guardian's rights and obligations to be clear,the guardianship system to be refined,the termination of guardianship to be liquidated,guardianship and supervision system to be established,the guardian duties to special group need to be strengthened.This article aims to learn from the experience of advanced legislation in other countries and combine with China's specific national conditions to put forward the improvement of China's adult guardianship system.The main ideas are: Firstly,define the qualifications of the guardian from the positive and negative qualifications,and clarify who can or cannot serve as guardians.Secondly,further clarify guardian rights and obligations,including resignation,access to remuneration and to point out that as a legal guardian of the close relatives he does not enjoy the right of resignation;the main obligations are to accept guardianship and to report regularly,etc.Thirdly,refine the negotiable guardianship system,allowing negotiations concerning giving up hopeless treatment,the choice of ways of treatment,the choice of contracts of notification,the choice of guardians,etc.And such regulations are guiding principles instead of prescriptions.Fourthly,make up the liquidation procedures.An immediate liquidation should be conducted after the end of the guardianship under the surveillance of supervisors.Fifthly,additional guardianship and supervision system.The supervision mechanisms for the supervision of natural persons,the supervision of administrative organs and the supervision of courts should be established.A special guardianship judge is set up by the court responsible for the custody of the related persons.The supervision of the administrative organs is mainly handled by the civil affairs departments,the residents' committees,the villagers' committees and other organizations.Lastly,to strengthen the guardianship function of the grass-roots mass autonomy organizations by manpower and financial resources for its real undertaking of the guardianship function.The paper aims to concentrate on the above respects for some reflections.