| It is stipulated in the second sentence of the first item of Article 35 in Civil Code that “a guardian shall not dispose of the property of his ward unless it is to safeguard the ward’s interests”.This regulation is established on the basis of legal agency,and it is actually the limit on the scope of legal agency.Therefore,the “ dispose ” in this context shall be interpreted as the act of agency in the name of “dispose”.Under the circumstance where parents mortgage the real estate of the ward,if it is to safeguard the interest of his ward,it shall be identified as authorized agency as well as a valid act,or it shall be identified as unauthorized agency beyond the agency authority,and the effect of mortgage act remains to be determined.At this moment,the ward’s right of ratification as the final relief right cannot be represented.Under the requirement of the same judgment for the same case,the judging rule of “safeguarding the ward’s interest” shall point out the specific direction on the basis of comprehensive judgment,and focus on examining the debt source and necessity of mortgage.Especially,elements like “fair consideration” and “impact on family life” shall be judged cautiously on the basis of respecting the true intention of the ward.Meanwhile,in order to alleviate the conflicts between the ward ’ s interest and transaction safety,it is necessary to build special standards for identifying the “good intentions” of counterparts.Therefore,it also needs to examine the counterpart’s trust in the transaction and its interest relationship with the guardian.Moreover,the ward ’ s disposing capacity shall also be considered during the execution of ratification right,to prevent the damage to the interest of the party due to the long-term underdetermined effect of mortgage act.Besides,the mortgage act can be further discriminated by notary organization with judgment ability. |
