A Study On The System Of Adult Voluntary Guardianship

With the emergence and development of the international human rights movement and the increasing number of problems caused by the aging of the population,many countries began to modify the original adult guardianship system.In this way,can better safeguard people’s legitimate rights and interests.The newly promulgated Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)provides for the voluntary guardianship system.This shows that the system has a relevant basis in the upper law.According to the provisions of Article 33 of the Civil Code,the adult guardianship system of our country has made a big step forward in legislation,but the regulation is too general,too abstract,and lacks the relevant concrete supporting measures.Based on this problem,it is necessary to speed up the improvement of adult voluntary guardianship system.This paper discusses this problem and puts forward some suggestions to perfect the adult voluntary guardianship system in China by comparing the adult voluntary guardianship system in the United States,Germany and Japan.This paper is divided into four parts:The first part focuses on the concept characteristics of adult voluntary guardianship system.Adult voluntary guardianship system refers to the person who has reached the age of 18 and has full civil capacity,who,out of his own true will and without the interference of others,chooses the person he trusts the most and signs a contract with him to protect his person and manage his medical and property affairs in case of loss or partial incapacity.Adult voluntary guardianship belongs to partial guardianship,the scope of application is expanded,and the contract of voluntary guardianship is the core.The second part introduces the current situation of the system in legislation and its application in judicial practice.First of all,it mainly introduces and analyzes the relevant provisions in the Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly(hereinafter referred to as the Law on the Protection of the Rights and Interests of the Elderly)and the Civil Code,enumerates the three cases of notarization of the voluntary guardianship agreement of the elderly,notarization of the voluntary guardianship of Shanxi Province and the entry into force of the first voluntary guardianship in China,and evaluates these three cases.It can be seen from these cases that the courts and notaries mostly use the provisions of principle to judge the case and so on.This reflects the lack of implementation rules for adult voluntary guardianship systems.Secondly,from the contract signed by the parties and supervision,this paper points out the problems existing in the voluntary guardianship system of adults in China.The third part is the investigation and enlightenment of extraterritorial related systems.This part mainly introduces the constitution of the relevant system in the United States,Germany and Japan,the authority of guardian,the entry into force of guardianship contract and guardianship supervision.Finally,the article analyzes the relevant system of extraterritoriality and discusses the reference significance of the relevant provisions of extraterritoriality to our country.The fourth part puts forward the suggestion to perfect the system.The principle of adult guardianship,that is,the principle of necessity and the principle of minimum restriction,is established by the relevant regulations outside the domain.The guardian of voluntary guardianship is qualified as long as he meets the two conditions of natural person or legal person and organization with full civil capacity and ability and willingness to bear guardianship responsibility.The effective termination of the voluntary guardianship contract meets the requirements,and the mode of direct supervision and indirect supervision can be adopted according to the relevant system of Japan.Establish contract registration,notarization and default guardian disciplinary system and other related supporting systems.