The Research About Chinese Designed Guardianship Agreement

The general view holds that China’s adult designed guardianship law is only the Article 33 of the General Principles of Civil Code,and this paper mainly studies the interpretation of Article 33 of GPCC.Theoretical problems encountered to us,such as whether a person with full capacity to act but lack of capacity of judgment or a person with enough capacity of judgment but lack of capacity to act can enter into guardianship contract or not,when Article 33 of GPCC formally made the conceptual and abstract ‘capacity to act’ as the validation elements of adult designed guardianship contract.Could the person authorise power of attorney of health care decision? How should the ‘capacity to act’ in the second sentence be assessed? Is it reasonable to set the ‘loss or partial capacity to act of adult’ as the validation elements of guardianship contract? How does the Article harmonize with preexisting guardianship machine?Does the Article meet the requirement of autonomy set forth in Article 12 of the United States Convention on the Rights of Persons with Disabilities?This article will study the concept of the adult designed guardianship,the subject of the adult designed guardianship agreement,the content of the designed guardianship agreement,the establishment and validation elements of the designed guardianship agreement,the general review of Article 33 of the General Principles of Civil Law and the improvement suggestions.Chapter I is centered on the concept of the adult designed guardianship.First of all,the history of the use of the term “designed guardianship” was sorted out,and proveout that there was a conflict between the term “designed guardianship” and its values.“Guardianship” must be replaced by “assisted decision-making”.Secondly,it clarifies the system position of "designed guardianship",and distinguished the other types of adult guardianship from it,thus clarifying its unique institutional value.Finally,the principles of the “designed Guardianship” especially “self-determination or autonomy” was discussed.Chapter II mainly studies the subject of the designed guardianship agreement.Through the combination of interpretation and legislation,this paper discusses whether a person with limited capacity to act can independently conclude an effective designed guardianship agreement.It also reflects on the“capacity to act” as condition of the agreement.Chapter III focuses on the content of the designed guardianship agreement,and studies from the perspective of matters and power.First of all,this paper studies whether the matters agreed in the designed guardianship agreement can include personal guardianship.After combing the empirical law and theory,it is believed that the designed guardianship agreement in China can include the personal guardianship matters represented by the right of consent to medical measures.Finally,it discusses the relationship between the designed guardianship agreement and the old guardianship norms,and responds to the dispute about whether the designed guardian should undertake the duty of life care in theory and the guardianship responsibility in tort law.Chapter IV mainly discusses the condition and validation elements of the designed guardianship agreement.Firstly,the condition of the designed guardianship agreement are reviewed,and notarization should be taken as the essential form.Secondly,the procedure and standard of evaluating the validation elements are discussed,and the problems of the existing positive law are put forward.Then this paper point out that ‘incapacity’ and‘incapacitated declaration’ can not be regarded as the validation elements and initiation procedures of guardianship contract.Chapter VI mainly discusses the legislative improvement of Article 33 of GPCC,and puts forward legislative Suggestions on "introduction of capacity of judgement","improvement of the form of assist decision-making agreement","improvement of the norms of consent right of medical measures" and " initiation mechanism of assist decision-making".