The Guardian's Right To Property Management

Guardian's duties are mainly divided into two aspects of personal care and property management.Guardian's property management rights refer to guardian's right to use,benefit and dispose under the premise of safeguarding the interests of the guardian.The guardian's right to property management shall include issuing the property list and proceeding with all movable and immovable property in which the guardian has the ownership Management,acting as the agent and so on.In the guardian's exercise of property management rights,voluntary principles,necessity principles and best interests principles should be followed.The so-called principle of voluntariness,that is,guarding the decision of the guardian's appointment and major issues,respects the guardian's right of self-decision.The so-called principle of necessity means "to limit the guardian's authority within the necessary limits so as to achieve the goal of minimum guardianship" The so-called best interest principle refers to the possibility of living according to one's wishes within the bounds of its power.From the perspective of substantive law,Article 35(1)of the General Provisions of Civil Law places restrictions on guardian's property management responsibilities: "The guardian shall perform the duty of guardianship in accordance with the principle that is most beneficial to the guardian,except for the benefit of the guardian,Shall not dispose of the property of the guardian ".Thus,our country has taken a blanket authorization for the guardian's rights.At the same time,this general right of the guardian is based on the uncertain legal concept of "the interests of the ward" as aboundary of authority.There is also no effective Legal supervision procedures.On the one hand,guardians are allowed to embezzle the assets of the person.On the other hand,the guardians may also infringe on the personal rights of the vulnerable guardians because of the embezzlement of property,which poses potential moral hazard.This paper argues that guardian's extensive property management rights should be limited.In the substantive law,from a positive perspective,the criteria and methods for considering "the interests of the wards" should be clarified.The principle of formal basis should be taken as an exception to the substantive benchmark.From a negative perspective,when the guardian acts an improper property management,the balance of the ward's interests,guardian's discretion,and transaction security should be achieved.It is not controversial at this point to apply the law of tort if the guardian lacks performance of duty or factuality cause property damage.However,if guardians practice legal acts or quasi-legal acts,their application in practice is indeed varied.Someone advocates applying tort law,someone advocates invalidation of mandatory provisions,and others advocates for the application of agency relationship.The only consensus that has been reached is the determination of a breach of the standard set forth in that article,namely the use of a unitary criterion of judgment-the adverse interest of the ward.This article refers to Germany,Japan and Taiwan to determine the criteria for the interests of the ward,focusing on the analysis of the evolution of the special agency system of Article 826 of Japanese Civil Law,advocating the introduction of principle of the conflicts of interests in Japanese law,adopting dual criteria Formal principle as the principle,in the case of the interests of the parent for the children non-interest,apply to unauthorized agency;for the interests of third parties and for the non-interest of their children apply to abuse of right of agency.In procedural law,the first is to revoke the procedural of guardians.The procedural of revocation of guardians in our country is all revoked.Because of misconduct property management,it is too harsh to disqualify all guardians,and it is not conducive to protecting the interests of the wards.The full revocation of guardianship is related to the guardian's package authorization model in our country.The specific content of theguardian's duties is not clearly defined.Therefore,when handling cases of this kind,the courts all basically disqualified their guardianship.Throughout the legislation of various countries,we have taken some measures to revoke and protect the interests of the guardian.Followed by the public registration system.Our guardianship rules focus on the guardianship of the personal care,while ignoring the property management,so the issue of publicity is not concerned,but there is no registration.However,as a public law,the public law should be carried out within the necessary scope to achieve the two interests of coordinating and protecting itself and the transaction security.At the same time,it can also supervise guardians to perform guardianship duties within their guardianship duties.Finally,the legitimacy of the court intervention guardianship.On the one hand,the guardianship is a double-edged sword.Guardian's huge "power" poses a threat to the guardians and requires the intervention of the state forces.On the other hand,the traditional family relations are becoming more and more lax and the state intervenes to protect the vulnerable family members.As supervisory organs,the court should move from the role of a neutral judge to an active supervisor to safeguard the interests of the guardian.