Research On The Legal Issues Of The Focus Of Self-Determined Guardianship In China

With the rapid progress of modern science and technology and the continuous development of economy,people’s living standards and living environment are improved,the level of medical and health services is becoming more advanced,people’s life expectancy is generally extended,and the problem of population aging has become one of the focuses of common concern of all countries in the world.With the rapid growth of the population of the elderly,the aging,empty nest and the "four-two-one"family model caused by the only child make the aging problem more serious and urgent.The problem that the elderly can’t protect their personal rights and property rights and interests is increasingly serious because of the decline of physical strength,willpower and judgment due to old age,infirmity,physical and mental diseases and other reasons.In recent years,international human rights organizations have paid more attention to human rights and have advocated the new ideas of respecting the independent decision-making rights of the elderly,which make the human rights and human dignity of the elderly people who lack the capacity of behavior get unprecedented attention.On the basis of respecting the right of self-determination of the elderly’s individual will,self-determined guardianship ensures the elderly’s equal,normal and non-discriminatory participation in social life.In China,self-determined guardianship was initially established by the law of the People’s Republic of China on the protection of the rights and interests of the elderly,and its scope of application was expanded by the general principles of the civil law of the People’s Republic of China,this legal provision is continued by the civil code of the People’s Republic of China.Although this makes up for the blank of legislation on self-determined guardianship,there is still a lack of specific supporting procedures to regulate the rights and obligations of both parties.In this paper,according to the production,implementation,transformation and termination of self-determined guardianship as the main line of this research,and pay attention to the supervision of the self-determined guardianship,focus on the legal issues that involved in these parts.In the analysis of the characteristics of self-determined guardianship,it is considered that it has its particularity in subject,content and application mode.Then,in the discussion of the legal issues touched on the production stage of self-determined guardianship,this paper compares the contract of self-determined guardianship with the contract of entrustment and the contract of self-determined guardianship with the legacy support agreement,and holds that it should be regarded as a new type of contract which cannot be replaced by other similar contracts.For the nature of self-determined guardianship,I agree with the view of the responsibility theory,which is the unity of rights and obligations,and the combination of authority and responsibility.In view of the blank of legislation on the specific rules of the contract of self-determined guardianship in China,it is considered that the contract should be notarized in addition to meeting the requirements of written form at the time of signing;the judgment of natural people’s behavior ability should not only be limited to age,intellectual development and mental health,but also take account of their actual behavior ability in specific affairs.In addition,when designing the content of the contract,in addition to property management and personal guardianship,it should also be allowed to make corresponding provisions on the right to remuneration of the self-determined guardian.Afterwards,in the discussion of the legal issues touched on the transformation and termination of self-determined guardianship,whether it is due to the reasons of the contract or the reasons of the parties that the self-determined guardianship needs to be transformed or terminated,the principle that the self-determined guardianship should take priority over the legal guardianship should be clear,and the responsibility allocation of the relevant guardians during the transformation period should also be clear.Finally,pointing at the legal issues of the focus of self-determined guardianship supervision,on the premise of defining the principle of minimum restriction,the principle of best interests and the principle of complementarity to be followed in self-determined guardianship supervision.This paper divides the supervision subjects into the supervision of institutions as supervisors and the supervision of individuals as supervisors of self-determined guardianship.So as to better define the duties and contents of the intended supervisor,and establish a dual supervision system consisting of direct supervision with the intended supervisor as the main part and indirect supervision with the public power as the auxiliary part.In order to make the self-determined guardianship become an effective measure to protect the rights and interests of the ward.