Study On The Arbitrary Adult Guardianship System In China

Since the second half of the 20 th century,western countries have suffered the crisis of population aging,the human impact of aging on the elderly life began to attract the attention of the people.Adults,as the growth of the age,the capacity for civil conduct is also gradually decrease,in the civil law adjustment about identity relationships such as guardianship,inheritance,care,and property relationships such as agency,property management,dwelling place,etc,has created a lot of impact.Especially,the traditional legal guardianship system,which takes the mentally ill as the object,has been greatly impacted in the protection of the elderly.Population aging is a social problem,which occurs not only in developed countries,but also in many developing countries,even more serious.Moreover,the practice of legal guardianship in China has shown that,the traditional model of taking spouse as the first guardian has many drawbacks in terms of eligibility,because the spouse is also a ward.From the perspective of operability,the traditional model of family guardianship needs to be further innovated.The arbitrary guardianship system has been highly praised by the international community since its implementation.The core of the arbitrary guardianship system is the arbitrary guardianship contract,which is an agency contract that the ward has complete judgment ability,and intends the guardian to take care of all or part of livelihoods,recuperation nursing,property management and other affairs after losing judgment ability.In addition,in this contract,a special agreement on the conditions for the validity of the contract should be attached.This system was introduced when the "General Rules of the Civil Law of the People’s Republic of China" was promulgated,but from the legislative content,the arbitrary guardianship system in the "Civil Code of the People’s Republic of China" is too principaled,and not strong at operability.In practice,the arbitrary guardianship system is more relying on the notarization system to accomplish,which lacks of clear legal guardian.More importantly,compared with the system in developed countries,the supervision mechanism of the arbitrary guardianship system in China is obviously insufficient,which needs to be improved urgently by legislation.This paper is divided into six parts.The first part is the introduction,which analyzes the research background and significance of this paper,and expounds the research status of this topic at home and abroad,as well as the innovation and research methods of this paper.The second part is an overview of the arbitrary guardianship system in China.This part combs the concept and function of the adult arbitrary guardianship system and compares it with other guardianship systems or similar systems in China.The third part is the current situation and insufficiency of the adult arbitrary guardianship system in China.In this part,the systems related to the adult arbitrary guardianship in the "Civil Code of the People’s Republic of China",the "Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly" and the "Notarization Law of the People’s Republic of China" are combed,and the implementation of the adult arbitrary guardianship system in practice is introduced,and summarized by analysis of the current our country adult arbitrary guardianship system lies in the deficiency of the imperfect arbitrary guardianship contract system and the lack of arbitrary guardianship supervision system by two aspects.The fourth part is the experience and enlightenment of foreign arbitrary guardianship system.This part introduces the Durable Power of Attorney in American,the Enduring Powers of Attorney in the United Kingdom and the Freewill Guardianship System in Japan,and summarizes the enlightenment of the system construction of arbitrary guardianship contract and supervision mechanism in the three countries.The fifth part is the legal suggestion to perfect the system of arbitrary guardianship in China.This part puts forward the corresponding legal suggestions around the perfection of the contract of arbitrary guardianship and the supervision system of arbitrary guardianship.The last part is the conclusion,which summarizes the thesis and looks forward to the development of adult arbitrary guardianship system.