On The Guardian's Disposition Of The Property Of The Ward

People without civil capacity and those with limited capacity for civil conduct are a relatively large and special vulnerable group in China.Due to limited capacity,they often need to "borrow" the hands of guardians to dispose of their own property.However,when the guardian disposes of the property of the ward,the disposition is not often in the interest of the ward.The inconformity here includes both the case where the guardian doesn't safeguard the ward's interests subjectively,and the case where the guardian is for the interest of the ward subjectively,but the disposition of the property objectively causes losses to the ward.As the statutory agent of the guardian,when the guardian disposes the ward's property in the name of the ward,he will inevitably break through the internal guardianship and set up the corresponding legal relationship with the third party.Therefore,how to determine the effectiveness of the action of the guardian in disposing the property of the ward and the commitment of the internal responsibility are crucial to balance the interests of the ward,the security of the transaction and the discretion of the guardian.Focusing on the internal and external effects of the guardian's disposition of the ward's property,first of all,it is necessary to define what is the interests of the ward,including the judgment of the interests and the judgment of the interests of the ward rather than the third party's.Secondly,in the judgment of external effectiveness,first of all,it is necessary to clarify the authority of the guardian to dispose of the property,and then identify the effectiveness of the behavior in combination with what is the interests of the ward,the third party's review obligations' s object and degree.Finally,when it is impossible to remedy the ward through the negation of the effect of external acts,it is necessary to distinguish between the situation which is not in the interests of the ward and those of the ward to analyze whether the guardian should bear the responsibility.This paper is divided into five parts:The first part analyzes the disputes about the interests of the ward,the authority of the guardian to dispose of the property,the determination of the effectiveness of the disposition of the property and the liability of the guardian in the judicial judgment.For the determination of the interests of the ward,there are different standards in the judicial judgment,some of which are contradictory to each other.As for whether article 35 of the general provisions of the civil law is the external authority clause of the guardian's disposition of ward's property,and whether it is necessary to jointly exercise the disposition of property when there are several guardians,there are pros and cons in judicial practice.Due to different opinions on the interests of the ward,whether article 35 of the general principles of the civil law is the imperative provisions of effectiveness,and the determination of the third party review obligation,the judicial judgment on the effectiveness of the disposition of the property shows two distinct views: invalid and valid.Since China has not made clear what duty of care the guardian shall fulfill in disposing of the property,the judicial judgment lacks relevant basis in determining whether the guardian should be held responsible for the ward.The second part determines whether the guardiand's disposition of the ward's property is for the ward's interests.First of all,the interests of the ward include the interests of property and personal interests,not all the guardian's disposition of the property is limited by necessity.Secondly,in the judgment of whether it is not for the interests of the ward but for the interests of others other than the ward,substantive judgment criteria shall be adopted,namely,comprehensive judgment shall be made from the subjective motive,reason,objective behavior and result of the statutory agent's property disposition.The third part ascertains the authority of the guardian's disposal of property.Article 35 of the general provisions of the civil law shall be the external authority of the guardian to dispose of the property,not just adjusting the internal relationship between the guardian and the ward.Secondly,When there are several guardians,either party has the right to exercise the right to dispose of the ward's property.The fourth part analyzes the effectiveness of the guardian's property disposition.Firstly,it shall be made clear that article 35 of the general principles of the civil law is not imperative provisions for effectiveness.In the judgment of the duty of care of the third party,the third party shall examine whether the guardian's property disposition is for the interests of the ward.Finally,after the disposition of the statutory agent is determined as unauthorized agency,if the third party fulfills his duty of review,the application of apparent agency may be asserted,otherwise,the act shall not be binding on the ward.If there is no conflict of interests in the actions of self-agency and double-agency,the action is valid.The existence of conflict of interest shall also be determined on the basis of substantive.If there is no conflict of interests,the action is valid,contrariwise,the disposition shall be not binding on the ward.The fifth part makes clear the responsibility of the guardian to the ward.When a guardian disposes of the ward's property not for the benefit of the ward,only if the ward suffers actual losses,the guardian shall be liable to the ward for compensation.If a guardian disposes of property in order to protect the interests of the ward,but objectively damages the interests of his ward,he shall be liable to the ward if he fails to fulfill the same duty of care with regard to the same matters as himself.