Research On The Improvement Of Adult Voluntary Guardianship System In China

Article 33 of the general principles of the civil law of the People’s Republic of China stipulates that adults with full capacity for civil conduct can determine their guardians in writing through consultation,which is known as the adult voluntary guardianship system in the academic and practical circles.that adults with full capacity for civil conduct can determine their guardians in writing through negotiation.This provision is called the adult voluntary guardianship system in the academic and practical circles.This system takes on the value idea of "law is for people" in Roman law,It is a major breakthrough of guardianship system in the process of codification of civil law in our country,which makes our adult guardianship system step forward towards diversification and comprehensiveness.However,the provisions of Article 33 of the general principles of civil law are too general and principled,and the legal system of voluntary guardianship is not perfect.It is only a rough framework and lack of specific designed rules,which makes the adult voluntary guardianship system lack of practical operability.If the problems faced in practice are not foreseen and dealt with sufficiently,it may lead to the lack of legal basis in the trial of the disputes caused by the agreement of consensual guardianship in the future,and may lead to the situation that the judgments resulted are not unified,which makes the creation of the system of consensual guardianship become a mere formality without achieving the purpose of the system.This paper attempts to use the method of system comparison,through the comparative study and analysis of some countries in the two different legal systems on the content of "adult guardianship" system,and on this basis try to construct and improve the system of adult guardianship with Chinese characteristics.In the first part of this paper,the author makes a horizontal comparison between adult guardianship and other similar legal concepts,aiming to find the particularity and irreplaceable of adult guardianship.In the second part,according to the current legislation and application status of adult guardianship system in China,the author makes corresponding comments and analyses,and puts forward the main problems existing in the current system,including the lack of registration and filing rules,the unclear effective conditions and termination status of adult guardianship agreement,and the absence of specific guardianship supervision entity system and procedures.The third part summarizes the experience that can be used for reference when creating China’s own system by comparing and analyzing the legislative provisions of the voluntary guardianship system in foreign countries.In the fourth part,from the perspective of protecting the interests of the person under guardianship and the guardian and maintaining the transaction security,through legislation to determine the rules for compulsory registration and filing,and elect civil affairs departments to undertake registration and filing;the declaration procedure of the effective and applicable capacity of the agreement of intended guardianship has to be clearly defined,and the scope of the trustee and the civil affairs department as the applicant has to be increased;the resignation of the guardian based on the "proper reason" is clearly defined;a dual supervision mechanism combining public supervision and private supervision has to be in order to further standardize the system and make it play a superior role.