Study On Voluntary Guardianship Agreement

The adult guardianship system originated from Roman law and gradually formed a system in various countries until the middle of the 20 th century.The development of the adult guardianship system reflects the humanism spirit of protecting human rights and the rights and interests of the weak.The adult guardianship system in China is an important civil legal system that adapts to the trend of social development.According to the monitoring set up by the way,of adult guardianship system can be divided into legal guardianship system with the adult guardianship system,and by this thesis is the study of the adult guardianship system by core content and the form of the guardianship by agreement,by monitoring is not only the effective measures to cope with the aging of the population,is also a social vulnerable groups to protect their legal rights and interests.The law on the Protection of The Rights and Interests of the Elderly stipulates for the first time a voluntary guardianship system for the elderly,which means that the elderly can choose their guardians by signing a voluntary guardianship agreement and make arrangements for their future life.However,the system only applies to the elderly,so the scope of protected objects is too narrow.General Principles of Civil Law established the system of adult voluntary guardianship.The subject of application of the adult voluntary guardianship system is adults with complete civil capacity,and the expansion of the scope of application of the subject can better protect the legitimate rights and interests of many system demanders.Article 33 of the Civil Code is only a perfect provision for the partial expression of the voluntary guardianship system,without any substantive changes.Therefore,the current law only standardizes the principle of voluntary guardianship,and does not make systematic and specific provisions on how to apply the system in practice.As a result,the legal rights and interests of most vulnerable groups are often ignored in the actual application of the system,and the value of the system is not really brought into play.First of all,according to the Civil Code,full capacity for civil conduct is a necessary qualification for the subject to enter into a voluntary guardianship agreement,which will lead to the inability of groups with relevant capacity for civil conduct to make arrangements for their future lives by signing a voluntary guardianship agreement.The author thinks that the capacity of will should be taken as the standard to judge the capacity of the client and the scope of the subject of the voluntary guardianship agreement should be enlarged.Second,the civil code is not to make the content of the agreement of the guardianship by rules,lead to practice agreement when the agreement is concluded between the parties hereto have no corresponding reference standard,easy to cause the agreed items range is too big,is not conducive to protect the lawful rights and interests of ward,the author suggests that the drilling of guardianship shall be to the content of the agreement to make certain restrictive provisions,Better protect the lawful rights and interests of the people under guardianship;In addition,the civil code specifies the guardianship by only deal must be concluded in written form,but there is no regulation will need agreement to register or notary,lack of procedure guarantee mechanism,increase the custody agreement is not formed by or invalid risk,the author suggested that shall be notarized as that of the guardianship agreement by effective condition,ensure the effectiveness of the guardianship agreement;In practice,the effect of the voluntary guardianship agreement is often linked with the declaration of civil capacity,which easily leads to a series of problems such as "guardianship gap period".The author suggests that the effect of the voluntary guardianship agreement should be disconnected from the declaration of civil capacity.Finally,the law does not establish a systematic and complete supervision mechanism for the voluntary guardianship agreement,which increases the risk of improper performance of the guardian’s duties and is not conducive to the protection of the relevant rights and interests of the guardianship.The author suggests that a perfect supervision mechanism of voluntary guardianship agreement should be established to clarify the subject of guardianship supervision and determine the supervision responsibility of the subject of guardianship,so as to better safeguard the legal rights and interests of the subject under guardianship.The system of voluntary guardianship makes the guardianship get rid of the bondage of kinship and marriage,and respects the real will of the guardianship to the greatest extent.The system plays an important role in alleviating aging,protecting human rights and maintaining social stability.It is urgent to improve relevant provisions.In this thesis,literature research method,comparative research method and other writing methods are used to analyze and compare the domestic and foreign studies on voluntary guardianship agreement,find out the problems in the application of voluntary guardianship agreement in China,and put forward targeted suggestions for improvement.