| While China’s social economy continues to grow,the public’s living standards are rising steadily and the average life expectancy is getting higher and higher.The resulting population aging phenomenon is also gradually prominent.China’s unique social and family structure makes the family guardianship unable to give full play to the effect of family self-management.This phenomenon of aging and fewer children urgently needs the guardianship system to break away from the traditional family structure.In this context,China has established a voluntary guardianship system.The law on the protection of the rights and interests of the elderly revised in 2012 stipulates the voluntary guardianship of the elderly for the first time,focusing on the protection of the rights and interests of the elderly.The civil code implemented in2021 inherits the essence of the general provisions of civil law and further improves the legal norms of this system.The establishment of voluntary guardianship system not only reflects the respect for adults’ own will,but also provides a new institutional guarantee for adults to treat themselves and dispose of their property in the most favorable way when they have major problems and are difficult to exercise their rights.However,the legal reform can not be achieved in one move to reverse China’s deep-rooted paternalism culture.Article 33 of the civil code still provides general provisions on voluntary guardianship,without detailed provisions on the selection of parties,the entry into force node of guardianship agreement,subject rights and responsibilities,and the lack of corresponding guardianship and supervision guarantee mechanism,which have significantly affected the popularization and application of voluntary guardianship system.Therefore,it is necessary to improve the relevant provisions and provide clearer legal guidance for the smooth implementation of the system,so as to give full play to the due value of the voluntary guardianship system to the greatest extent.This paper aims to make an in-depth study and analysis of China’s voluntary guardianship system,find the shortcomings of the system,and put forward practical suggestions to improve China’s voluntary guardianship system by reading literature,learning from and absorbing the advanced experience of foreign countries.Firstly,this paper briefly summarizes the basic meaning and function of voluntary guardianship system in China.Secondly,starting from the application status of China’s voluntary guardianship system,this paper deeply analyzes the legislative status,notarization status and judicial status of China’s voluntary guardianship system,and summarizes the problems existing in China’s voluntary guardianship system,such as the unreasonable scope of the subject qualification of both parties to the agreement,the too simple formal elements of the guardianship agreement,the gap between the declaration system of capacity,the unclear rights and responsibilities of the parties,and the lack of strong guardianship and supervision guarantee mechanism.Then it draws lessons from the legislative experience of the continuous agency authorization system of the United States and Britain in the maritime law system,the adult care system of Germany in the continental law system and the arbitrary guardianship system of Japan,in order to find a system reference in line with China’s national conditions.Finally,based on the existing problems,this paper puts forward corresponding improvement suggestions: on the premise of improving the guardianship agreement,expand the scope of the subject qualification of the agreement,set the guardian access conditions,then introduce the notarization procedure,and "decouple" the guardianship from the limited capacity of behavior,clarify the distribution of rights and responsibilities of both guardians,and finally supplement the supporting guardianship supervision and guarantee mechanism on the existing basis,In order to give full play to the maximum value of China’s intended guardianship system. |
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