Problems In The Operation Of The Elderly Voluntary Guardianship System And The Improvement Of The Rules

In the middle of the 20 th century,the aging of the population in Western countries gradually emerged.In order to deal with the problems related to the elderly caused by the aging of the population,the Western countries began to reform the guardianship system one after another.With the rising awareness of human rights in Western countries,in order to respect the self-determination rights of the parties and normalize their lives,the guardianship system came into being in the reform.In our country,it was not until 2020 that voluntary guardianship was written into the Civil Code as a formal system,but it was only a principled regulation.In practice,the legal basis for voluntary guardianship is operability.My country’s population aging is a major trend,and improving my country’s voluntary guardianship system is of great significance to alleviate the contradictions caused by population aging.The analysis and research on voluntary guardianship in this article is divided into four parts:The first part is a description of the problems found in the practical application of the voluntary guardianship system.Through the study of the cases in practice,the current situation of the operation of the system is summarized,and it is shown through the form of cases that there are indeed many problems in the operation of the voluntary guardianship system for the elderly in my country,and the relevant system concepts involved in the case are satisfactory.A comparative analysis is made between voluntary guardianship and legal guardianship,voluntary guardianship agreement and bequest support agreement,highlighting the uniqueness and necessity of perfect voluntary guardianship rules.The second part is the research on the basic theory of the voluntary guardianship system.By discussing the connotation definition,function evaluation and historical evolution of the will-determination guardianship system,the comprehensive analysis of the will-determination guardianship system will lay a solid theoretical foundation for the improvement of the will-determination guardianship system in my country.And by sorting out the current legislation in our country,it mainly analyzes the provisions of the "Law on the Protection of the Rights and Interests of the Elderly" and the "Civil Code" on voluntary guardianship.It is pointed out that our country’s guardianship system has deficiencies in the following aspects: the current legislation in our country does not mention the relevant content about the conclusion and entry into force of the guardianship agreement;the current legislation in our country is unbalanced in the distribution of internal rights and responsibilities between the guardian and the ward.At the same time,there is no mention of the reasonable connection between the willed guardian and the legal guardian;my country’s supervision mechanism for the willful guardianship is also in a state of absence,lacking the provisions on the specific duties of the supervisory subject,and the lack of full supervision of the guardian’s performance of duties.The third part is the analysis and reference of the extraterritorial accidental guardianship system.Two representative countries are selected in the common law system and the civil law system.By introducing the background and main contents of the foreign guardianship system,the establishment method and procedure of the guardianship agreement,the subject qualifications of both parties of the guardianship,and the post-event supervision of the guardianship are studied.And fully combine the specific practical situation of the country’s national conditions,combine the legal spirit of respecting the right of self-determination with the rational culture of inheriting and helping each other,and formulate a voluntary guardianship system that is suitable for my country’s national conditions and can be practiced.The fourth part is the suggestion to perfect the guardianship system of our country’s will.Pay attention to the distribution of rights and responsibilities of both parties in terms of the parties;care about the conclusion and entry into force of the guardianship agreement,allow the public power to intervene properly,and a notary agency can conduct a substantive review of the civil capacity of the party under guardianship when the agreement is concluded;In the distribution of internal rights and responsibilities between guardians and wards,the combination of autonomy of will and legal restrictions should be adhered to,the rights and responsibilities of both guardians should be balanced,and the principles of maximum protection and minimum intervention should be followed.As for the connection and application of the voluntary guardian and the external legal guardian,one should earnestly respect the right of self-determination,and implement the rule that the legal guardianship agreement will take effect only when the two parties of the legal guardian cannot reach an agreement;Play a dual-track supervisory mechanism and play the main role of a designated guardian supervisor.