On Supervision System Of Guardianship

The guardianship system is set up to protect the interests of the ward,but guardianship is a double-edged sword,if the supervision of guardianship is absent,then the guardian infringing upon the rights and interests of the ward will be difficult to be timely detected and stopped.The supervision system of guardianship has been institutionalized in the foreign legislation,but there is still no systematic supervision of guardianship in China.Therefore,this paper studies and draws lessons from overseas legislative experience,and tries to put forward specific Suggestions on the institutionalization of China’s supervision system of guardianship in combination with China’s social reality.The first part of the article analyzes the norms related to supervision of guardianship in the legislation of our country,and points out that the supervision system of guardianship in our country has not been institutionalized,and the content of relevant laws is single,which can only play a limited role of post-supervision,and cannot meet the needs of practice.At the same time,there is still a problem of weak implementation of the relevant norms that play the role of supervision.The essential reason for the defects in legislation and the deficiencies in execution is that the relevant subjects have no clear understanding of the nature of guardianship.However,no matter from the perspective of the development of the guardianship system,or from the perspective of China’s statute law,both parental guardianship and narrow guardianship are legal obligations.There is no academic barrier to supervise the performance of legal obligations.We should discard the influence of the concept of family autonomy and develop and improve the supervision system of guardianship.In the second part,the author studies the typical legislation of the supervision system of guardianship in other countries so as to provide reference for the institutionalization of the supervision system of guardianship in China.In foreign legislative cases,the legislative mode of guardianship supervision system can be divided into the same mode of trust degree under broad guardianship,the same mode of trust degree under narrow guardianship and the same mode of trust degree under broad guardianship,which are represented by the United Kingdom,Germany and Quebec of Canada respectively.Our country is more suitable for Quebec-style supervision of guardianship legislation model.Further combining with China’s traditional culture and social reality,the parents of minors and the one who has de facto parental status should be taken as one category,and other guardians as one category.In terms of the specific content of supervision of guardianship,the means of supervision in the extraterritorial law are ladder and diversified,and they are typical.The public authority usually plays a leading role in the work of supervision of guardianship.The third part of the article expounds how to carry on the supervision of guardianship.The specific measures of the supervision of guardianship can be divided into preventive supervision and remedy supervision.In China,civil affairs departments are suitable for serving as guardianship supervision organs,and other natural persons qualified for guardianship are suitable for serving as guardianship supervisors.The specific measures of preventive supervision include corrective feedback from the supervision supervisor,submission of the supervision accounts,approval of the supervision actions,the guardian’s reply to inquiries and regular reports,and regular visits by the supervision organ.The specific measures of remedy supervision of guardianship include removal of guardianship responsibility and supervision under official assistance.If the guardian is not a minor’s parent or parent,in principle,both types of supervision norms should be applied.With regard to the guardian of an adult,reference shall be made to the supervision of guardianship standards applicable to non-parental guardians of minors.However,if a close relative acts as guardian of an adult,the guardian may,upon the application of the guardian,be relaxed by a court ruling.The fourth part of the article expounds how to adjust the specific measures of guardianship supervision to the parents or the one who has de facto parental status.For the sake of protecting the interests of the ward and saving the cost of the system,only the remedy supervision of guardianship should be applied in principle.The so-called " the one who has de facto parental status " refers to a person who,though not the legal parent of the ward,has established a de facto relationship with the ward.For the sake of the interests of children,when the supervision subject starts the remedy supervision of guardianship for the parents and the one who has de facto parental status,it should give priority to the non-separate official assistance measures,and cautiously cancel the guardianship responsibility,especially the personal care responsibility.Under exceptional circumstances,some or all preventive supervision of measures shall also be applied to parents or the one who has de facto parental status if the guardian has been withdrawn from guardianship or if the guardian has committed serious negative behaviors such as drug abuse or violent crime.or in whole to the parents and their peers.