Research On The Perfection Of Voluntary Guardianship System From The Perspective Of Civil Code

The problem of population aging is intensifying worldwide,and China,as a country with a large population,is bearing the brunt of it.In this regard,China’s Civil Code conforms to the trend of reform of the world’s adult guardianship system and provides a solution to the voluntary guardianship system at the legal level,which is worthy of recognition.However,due to the current research on the voluntary guardianship system in China’s academic circles is not in-depth enough,the Civil Code does not make detailed provisions on many aspects of the voluntary guardianship system,especially the establishment of supporting systems related to intentional guardianship,which needs to be further improved.Therefore,under the premise that China’s Civil Code has been promulgated,it is necessary to analyze the problems faced by the voluntary guardianship system in theory and practice from the perspective of the Civil Code,and at the same time learn from the useful experience of relevant legislation of foreign countries and draw lessons,so as to put forward practical and feasible suggestions for improvement and further give play to the institutional value of the voluntary guardianship system.In addition to the introduction,this thesis includes the following four parts:The first part mainly focuses on the basic theory of the voluntary guardianship system,and the practical significance and value of the system.Firstly,the academic debate on the nature of the voluntary guardianship system is briefly analyzed,and the point of view of this thesis is that the intentional guardianship agreement is a special entrustment contract that grants the right of attorney and has effective conditions.Secondly,a brief introduction is given to the basic principles that the intended guardianship system should adhere to the "presumption of ability","minimum limit" and "best interest";Finally,it is concluded that China’s voluntary guardianship system has practical significance and value such as promoting the innovation of China’s adult guardianship concept,solving the practical needs of China’s social aging problem,and safeguarding the institutional guarantee of the rights and interests of vulnerable groups in society.The second part is based on the current legislative and judicial practice status of China’s voluntary guardianship system,through the combing of the legislative history of China’s voluntary guardianship system and the classification and analysis of typical cases in judicial practice,it is concluded that there is(1)confusion in the current system positioning of China’s voluntary guardianship system: which is the priority between legal guardianship and intentional guardianship? The intended guardianship system is linked to the system of declaration of lack of capacity(2)Vacancy of provisions in the agreement: The relevant provisions of the intentional guardianship agreement are still in the legislative gap(3)Insufficient procedural safeguards: The relevant safeguard procedures for intentional guardianship have not yet been established(4)The supervision mechanism is missing: The simple post-event supervision cannot achieve the desired system effect,and other specific shortcomings.The third part provides enlightenment and thinking for China’s intentional guardianship system by drawing on the design of relevant legal systems of countries outside the region.Mainly selected representative countries of the two major legal systems,this thesis briefly introduces and analyzes the continuous agency system in the United States,the permanent agency system in the United Kingdom,the care system in Germany and the arbitrary guardianship system in Japan,with the intention of drawing some useful experience for the development and improvement of China’s voluntary guardianship system.In the fourth part,in view of the specific shortcomings of China’s voluntary guardianship system proposed in the second part,and referring to the experience of the extraterritorial system,relevant suggestions for improving China’s voluntary guardianship system are put forward.First,it is clarified that the voluntary guardianship system has priority over legal guardianship,and the voluntary guardianship system is decoupled from the determination of lack of capacity;Secondly,the relevant provisions of China’s intentional guardianship agreement are refined from different dimensions such as subject,content,effective and terminated;Third,in view of the insufficient protection of intentional guardianship procedures,establish and improve the procedures for registration,notarization and guardianship reporting of intentional guardianship;Finally,by encouraging the selection and appointment of social organizations as intended guardianship supervisors and strengthening the role of public power organs such as civil affairs departments and people’s courts,establish a dual supervision model in which ex-ante,in-process and post-event supervision is involved throughout the process,and a dual supervision model that combines public power supervision and private supervision in line with China’s national conditions.