Research On The Willful Guardianship System In China

The testamentary guardianship system originated in ancient Rome,and now it has formed a complete system in the main countries of the two legal systems.However,the current probate guardianship system in our country still remains in a legislative provision of the General Principles of Civil Law,and has not established a perfect guardianship system.Therefore,it is particularly important to put forward legislative proposals to improve the probate guardianship system in China.Although the system of testamentary guardianship originated very early,the definitions of its concept vary from country to country.In our country,testamentary guardianship mainly refers to the act of parents appointing guardians for their children through testament to undertake their guardianship duties.Unlike statutory guardianship,the nature of testamentary guardianship mainly embodies the unity of rights and obligations.In practice,making a will and appointing a guardian should not only follow the principle of maximum interests of the guardian,but also follow the principle of Party autonomy.There are some problems in the legislation of testamentary guardianship in China,such as the absence of the rights of guardians,the ambiguity of the scope of guardians,the absence of the effective elements of testamentary guardianship,the ambiguity of the effectiveness of testamentary guardianship and the lack of supervision over testamentary guardianship.To investigate the legislation of testamentary guardianship system abroad,whether in civil law or common law countries,the principle of maximizing the interests of children is regarded as the basic principle of testamentary guardianship system,and all of them are involved in national power in the operation of testamentary guardianship.Through the use of historical analysis,normative analysis,and literature analysis,based on China’s basic national conditions and successful legislative experience abroad,the perfection of our testamentary guardianship system needs to determine the rights of guardians,define the scope of guardians,complete the effective elements of testamentary guardianship,establish the priority effect of testamentary guardianship,and strengthen the supervision of testamentary guardianship.Only by solving the shortcomings of the legislation of testamentary guardianship can we guide the practice and make rational use of the system.