Reflections on the Guardianship and Support System of the Elderly Under the Background of an Aging Society
WANG Liping *
Abstract: China’s aging society poses new challenges to guardianship system in the General Rules of the Civil Law of the people’s Republic of China. The General provisions of the Civil Law adapts to the requirements of the times and makes some important amendments and supplements to the guardianship system, notably the scope of adults with civil disability or limited capacity for civil conduct is no longer limited to people with a mental illness. However, there remain many deficiencies in the regulations. Based on the framework provisions of the existing guardianship system of the General provisions of Civil Law, in the compilation of the marriage and family provisions in the Civil Code, it is necessary to strengthen the protection of the rights and interests of the elderly in an aging society, further improve the elderly guardianship system, including changing the single pattern of the guardianship system and improving the “dual subject” pattern of adult guardianship and adult support system, expand the scope of protected subject of guardianship, and improve the existing system of intentional custody, adult guardianship system, and guardianship and supervision system.
Keywords: aging society · guardianship system · adult guardianship · support system · “dual subject” protection pattern
An aging society is a society where the population of the elderly reaches or exceeds a certain proportion of the total population. According to the United Nations, an aging society is one in which 10 percent of the population is the aged over 60, or 7 percent is aged over 65. 1 The Chinese mainland’s population aged 65 or above has been more than 7 percent since 2000 and so it has an aging society. The Main Data Bulletin of the Sixth National Population Census in 2010 released by the National Bureau of Statistics shows that there were 177,648,705 people aged 60 or above in the country’s 31 provinces, autonomous regions and municipalities, accounting for 13.26 percent of the population. Compared with the fifth national population census in 2000, the proportion of the population aged 60 or above had increased by 2.93 percentage points. 2 Taking the elderly aged 65 or above as an example, the proportion of the population aged 65 or above in China was 7 percent in 2000, and it rose rapidly to 10.8 percent in 2016. According to data released by the National Bureau of Statistics, by the end of 2018, there were 166.58 million people over the age of 65 out of a population of 139.54 million 3 , accounting for 11.9 percent of the total population. See table 1 for details.
On January 21, 2017, at the Forum for Greater China: An Aging Population held by Washington University in Shanghai, Nancy Morrow Howell, director of the university’s Harvey A. Friedman Center for Aging, predicted that the number of people over 65 would increase from 100 million in 2005 to 329 million by 2050, and the number of people over 80 would reach around 120 million. If measured by the proportion of people aged 65 and above in the population, it would take 26 years for China to increase from 7 percent to 14 percent, compared with 69 years for the United States and 115 years for France. 5 In addition, China’s population structure is characterized by a high degree and rapid rate of aging, and a large number of the elderly are disabled or have impaired mental abilities or dementia. 6 The rapidly aging population has caused a series of complicated social issues. Among them, how to protect the rights of the elderly has posed serious challenges to the guardianship system set out in the Civil Law. Based on the analysis of the content and the deficiencies in the adult guardianship system, especially the guardianship system for the elderly in the General provisions of Civil Law issued in 2017, this paper will discuss the “dual object” pattern of adult guardianship and elderly support system, with the aim of better protecting the rights and interests of the elderly. Hopefully, this paper will benefit the compiling of the Civil Code.
I. Adult Guardianship in China
A. Adult guardianship before the promulgation and enforcement of the General Provisions of Civil Law
The General Rules of the Civil Law promulgated in 1986 mainly refers to the guardianship system for juveniles and persons with mental disabilities. As for adults, only when a people’s court recognizes an adult as a person without or with limited capacity for civil conduct can a guardian be assigned that person. Legal provisions related to adult guardianship include Article 17, Article 18 and Article 19 of the General Rules of the Civil Law and Article 26 of the Law on the protection of Rights and interests of the Elderly. The main contents are as follow:
First, the main subjects of application are persons with cognitive impairment or dementia who are unable to care for themselves.
Second, adult guardianship includes both natural persons and other non-natural persons of related units. Article 17 of the General Rules of the Civil Law stipulates that a natural person guardian of a person with a mental disability should be the spouse, parents, adult children, other close relatives or friends who, with the consent of the relevant authorities, are willing to assume the responsibility of guardianship. If a person with a mental disability has no natural person as a guardian, the unit he/she belongs to or the village (residential) committee of the place of his residence or the civil affairs department shall act as his guardian. Article 26 of the revised Law on the protection of Rights and interests of the Elderly (amended in 2012) stipulates that the elderly can determine their guardians before losing or partially losing the capacity for self-care; if no guardian is determined in advance, the guardian shall be determined in accordance with the relevant provisions of the law.
Third, there are three modes of adult guardianship: legal guardianship, assigned guardianship and determined guardianship. The General Rules of the Civil Law stipulate that adults with mental disabilities can only be subject to legal guardianship and assigned guardianship. Article 26 of the Law on the protection of Rights and interests of the Elderly stipulates determined guardianship, that is, the elderly can sign a written agreement with a trustee and determine their guardians before the loss or partial loss of the capacity for such conduct. In this sense, some scholars pointed out that the legislative significance of the Law on the protection of Rights and interests of the Elderly is that it means the Chinese mainland has joined the tide of reform of the adult guardianship system and made specific provisions for the elderly in its guardianship system, which fills the legislation blank of the determined and assigned guardianship system for the elderly who lose or partially lose the capacity for civil conduct and is adapted to the pressing needs of the country’s aging society. 7
Fourth, duties, rights and obligations of the guardian. The guardian shall proactively perform the guardianship duties in accordance with the provisions of the law; the guardian shall not interfere with others exercising guardianship according to the law; and the guardian shall bear the corresponding legal responsibility for infringing upon the legitimate interest of the person under the guardianship, etc.
In addition, the Civil procedure Law and the judicial interpretation of the Supreme People’s Court on the application of the General Rules of the Civil Law also provide relevant provisions on the procedural conditions applicable to adult guardianship. Unfortunately, both the law and the judicial interpretation of adult guardianship are limited to the guardianship of the dementia patients.
B. Provisions on adult guardianship in the General Provisions of Civil Law
The provisions of “Natural Persons” in the Chapter 2 of the General provisions of Civil Law is same as that of the General Rules of the Civil Law? It also stipulates the “capacity for civil rights” and “capacity for civil conduct”, and based on differences between the age, intelligence, capacity for identification, the natural persons are defined as persons with full capacity for civil conduct, persons with limited capacity for civil conduct, and persons with no capacity for civil conduct. The provisions in the General provisions of Civil Law concerning adult guardianship system mainly contain the following content:
First, about the adult under guardianship. An adult who is unable to account for his/her conduct is a person having no capacity for civil conduct and shall be represented by his/her legal agent in the performance of legal matters. An adult who is unable to fully account for his/her conduct is a person having limited capacity for civil conduct and shall be represented by his/her legal agent in the performance of civil juristic acts. However, such a person may independently perform a civil juristic act that has a nature of pure profit or the performance of which is compatible with his/her age and intelligence.
Second, about the scope and order of guardians. The following persons with capacity for guardianship shall be the guardians for adults who have no or limited capacity for social functioning in order of: (1) spouse; (2) parents and children; (3) other close relatives; (4) other individuals or organizations willing to act as guardians (subject to the consent of the residents’ committee, villagers’ committee or civil affairs department of the place where the person under guardianship lives).
Third, assigned guardianship. In case of any dispute over the assignment of the guardian, the residents’ or village committee of the place where the person to be under guardianship lives or the civil affairs department shall assign a guardian. If the party concerned refuses to accept the assignment, he/she may apply to the people’s court for the assignment of a guardian; the party concerned may also directly apply to the people’s court for the assignment of a guardian. The residents’ committee, the villagers’ committee, the civil affairs department, or the people’s court should respect the real will of the person under guardianship and assign a guardian among the persons who are qualified for guardianship according to the principle of being most favorable to the person under guardianship. When revoking the guardianship, the people’s court should assign as guardian the person/s being most favorable to the person under guardianship.
Fourth, temporary guardianship. If, prior to the assignment of a guardian, human rights, property rights and other legitimate rights and interests of the person under guardianship are in a state of no protection, the residents’ committee or villagers’ committee in the place where he/she lives, the relevant organization prescribed by law, or the civil affairs department shall act as his temporary guardian. In addition, the people’s court should arrange necessary temporary guardianship measures when revoking the guardianship.
Fifth, determined guardianship. An adult with full capacity for civil conduct may determine his/her guardian in writing through prior consultation with his/her close relatives or other individuals or organizations willing to act as the guardian. When the adult loses or partially loses the capacity for civil conduct, the guardian determined through consultation should perform his/her duty of guardianship.
Sixth, State guardianship responsibility. If there is no person who has the qualifications for guardianship according to the law, the guardian shall be held by the civil affairs department; it may also be held by the residents’ or villagers’ committees that have the qualifications to perform the duty of guardianship, in the place where the person under guardianship lives.
Seventh, duty of the guardian. The duty of a guardian is to represent the person under guardianship in the performance of civil juristic acts and to protect the person’s human rights, property rights and other legitimate rights and interests. The guardian should assume his/her duty according to the principle of being most favorable to the person under guardianship. A guardian cannot dispose of the property of the person under guardianship, except to safeguard his/her interests. In performing the duties of guardianship, the guardian of an adult shall, to the greatest extent, respect the real will of the person under guardianship and ensure and assist him/her in carrying out civil juristic acts appropriate to his/her intellectual and mental health status. The guardian shall not interfere in the affairs of the person under his/her guardianship that he/she is capable of handling independently. If a guardian fails to perform his/her duties as guardian or infringes upon the legitimate rights and interests of the person under guardianship, he/she shall bear legal responsibility.
Eighth, revocation and restoration of guardianship. If a guardian behaves in any of the following ways, the people’s court shall, upon the application of the individual or organization 8 concerned, revoke his/her guardianship: (1) perform acts that seriously impair the physical and/or mental health of the person under guardianship; (2) are negligent in performing his/her guardianship duties, or unable to perform his/her guardianship duties and refuses to entrust part or all of his guardianship duties to another person, thus causing the person under guardianship to be in a critical condition; (3) perform other acts that seriously infringe upon the legitimate rights and interests of the person under his/her guardianship. The revocation of guardianship does not mean the exemption of the obligation of supporting or upbringing. The children or spouses who bear the alimony or support fee for the guardianship shall continue to perform their obligations. After the revocation of guardianship, the guardian who meets the requirements can apply for recovering the guardianship. Namely, after the parents or children of the person under guardianship have their guardianship revoked by the people’s court, if, except for those who have committed intentional crimes against the person under guardianship, they have shown signs of repentance, the people’s court may, upon their application, restore their guardianship as the case may be, on the premise they will respect the true will of the person under guardianship.
Ninth, termination of guardianship. The guardianship shall be terminated under any of the following circumstances: the person under guardianship has acquired or regained full capacity for civil conduct; the guardian loses the capacity for guardianship. The person under guardianship or the guardian dies; and other circumstances under which the people’s court deems the guardianship to have been terminated.
Compared with the guardianship system in the General Rules of the Civil Law, the General provisions of Civil Law has several bright spots. First, the scope of the adult who has no or limited capacity for civil conduct is no longer limited to “persons with mental disabilities” as stipulated by the General Rules of the Civil Law, with the term no longer used 9 . Instead, “adult who cannot identify his/her own behavior” and “the adult who cannot completely identify his/her own behavior” are adopted. Second, it is clearly stipulated that an adult who has limited capacity for civil conduct can independently carry out civil juristic acts of pure benefit. Third, the legal loophole in the General Rules of the Civil Law has been closed, and the system of revocation and restoration of temporary guardianship, determined guardianship and the qualification of guardianship have been stipulated. Fourth, it is emphasized that when the guardianship and guardian are assigned to perform their guardianship duties, they should respect the real will of the person under guardianship and adhere to the principle of being most beneficial to the person under guardianship. The changes in the General provisions of Civil Law not only respond to the needs of the society and adapt to the changes of the aging society, but also reflect the concept of protecting the weak and caring for humanity. 10
II. Deficiencies in the Provisions of Adult Guardianship System in the General Provisions of Civil Law
Since the late 1960s, with an aging population and the development of the theory of the protection of human rights, more and more countries have paid attention to the protection of the interests of the elderly and the human rights of adults with disabilities and their residual ability, developed a new concept about the well-being of people with physical and mental impairments, and attached importance to normalization and “respect for the decision of one’s own”. With the idea of respecting and protecting the human rights of the physically or mentally disabled gaining universal recognition, a series of international conventions for the protection of the physically or mentally disabled have been adopted. The United Nations passed the Declaration on the Rights of Mentally Retarded persons in 1971, in 1975 passed the Declaration on the Rights of Disabled persons, and in 1991 passed the united Nations principles for Older persons. The united Nations principles for Older persons clearly states that elderly should enjoy the care and protection of their families and communities; the elderly should have access to health services to help them maintain or restore their optimal physical, intellectual and emotional levels and to prevent or delay dementia; the elderly should have access to social and legal services to enhance their autonomy and to enable them to be better protected and cared for; the elderly enjoy human rights and fundamental freedom, including full respect for their dignity, beliefs, needs and privacy, and respect for their right to make choices about their care and quality of life. 11
At the same time, many countries and regions have revised the original prohibition system and quasi-prohibition system in civil law, which restricted the acts of the person under guardianship in the past, to help the elderly participate in social life by setting up guardianship, care, protection, support and other systems, and they also emphasize State responsibility. For example, France in 1968, Austria in 1983, Germany in 1990, Japan in 1999 and the Republic of Korea in 2013 have modified and improved the original system respectively. Since these times they have pursued a new concept of adult guardianship and care, which has transformed it from comprehensive guardianship to partial guardianship; they attach importance to the human rights of the adults with disabilities, respect their residual will ability and self-determination, and assist them to participate in social life on an equal and normal basis without discrimination. Although the reformed adult guardianship system is varied in legislative form, it presents a relatively consistent legislative trend, that is it is transformed from medical guardianship to human rights guardianship, and from comprehensive guardianship to partial guardianship; the utilization of the system is expanded, the protection and support measures are diversified, and taking determined guardianship as the main guardianship and legal guardianship as a supplement, 12 etc. Compared with that, the adult guardianship system stipulated in the General provisions of Civil Law still has many deficiencies.
A. The concept of guardianship and support needs to be further updated
As mentioned above, many countries have established new adult guardianship, care, protection and support systems to “protect persons with mental disability”, respect their decisions, give full play to their remaining ability, and maintain their normal life. 13 The adult guardianship system in the General provisions of Civil Law is closely related to the system of natural persons’ capacity for civil conduct. The system of capacity for civil conduct is to guarantee a natural person to acquire civil rights and assume civil obligations through his/her own actions. 14 If a natural person conducts civil activities without corresponding civil capacity, the legal effect of his/her behavior will be affected. This kind of institutional arrangement is mainly considered from the perspective of transaction security, and is still based on the “correction” of the capacity for conduct of “a person who has no capacity for civil conduct” and “a person who has limited capacity for civil conduct”. Although the determined guardianship is included in the adult guardianship system, its purpose is still to guarantee the elderly who has “full capacity for civil conduct”, prior to consulting with their close relatives, and other individuals or organizations who would like to become the guardian, and to determine their own “guardian” in writing. When the elderly loses or partially loses the capacity for civil conduct, the guardian determined through negotiation shall perform the “guardianship duties”, that is, perform civil juristic acts on behalf of the person under guardianship to protect the personal rights, property rights and other legitimate rights and interests of person under guardianship. Compared with modern adult guardianship, care and support system, there is still a gap between the concept of attaching importance to the human rights of adults with cognitive impairment, respecting their residual will ability and self-determination, and assisting them to participate in social life on an equal and normal basis without discrimination.
B. Monotonous guardianship pattern
As the basic law for adjusting civil relations, the General provisions of Civil Law only has an adult guardianship system for adults, without relevant auxiliary systems. The guardianship system has a single level and cannot meet the needs of people with different civil conduct capacity. In the General provisions of Civil Law, capacity for civil conduct is divided into full capacity for civil conduct, limited capacity for civil conduct and no capacity for civil conduct. There are great differences in the exercising of civil rights, the performance of civil obligations and the assumption of civil responsibility by persons with different civil conduct capacities. The guardianship of persons with limited capacity for civil conduct and those without capacity for civil conduct 15 is only stipulated in general, resulting in a system with a single level of guardianship and neglecting the residual ability of persons with insufficient judgment ability, which is difficult to meet the diversified needs of the elderly. The relevant system in Japanese civil law can be used for reference. There are three types of protection for adults in the Japanese law: (1) Due to mental disorders and lack of the ability to recognize things, which is the normal state, guardianship can be conducted; (2) Due to the mental disorders and the ability to recognize things is conspicuously not enough, protection can be conducted; (3) Due to the mental disorders and the ability to recognize things is not enough, support can be conducted. 16
C. The elderly who need protection, especially the advanced ages, cannot be covered
In the academic circle of China, scholars usually define guardianship as a civil juristic system to supervise and protect the personal, property and other legitimate rights and interests of juveniles and persons with a mental disability, 17 which is a system established for juveniles and those with mental disabilities who have no or limited capacity for civil conduct to supervise and protect the legitimate rights and interests of juveniles and mental patients. 18 This formulation is, of course, subject to amendment with the promulgation and enforcement of the General provisions of Civil Law. However, even under the existing the General provisions of Civil Law, the object of adult guardianship is only adults with no or limited capacity for civil conduct. The scope of guardianship under the law is too narrow to cover all adults in need of protection, especially the elderly who are too old to handle all or part of their affairs. Many aged people’s behavioral limitations are not caused by mental or intellectual disorders. With aging, people’s abilities of attention, observation, imagination, memory, thinking and practice and social adaptability gradually decline, and they will decline significantly at old age. Research shows that optimal percipience is between the age of 10 to 17; for memory it is between 18 to 29, and it peaks at 35, and then declines; the best age for comparison and judgment is between 30 to 49; the best age for movement and reaction speed is between 18 to 29. For people aged 50 to 69, those abilities are 76 percent, 83 percent, 87 percent and 92 percent of their peak, respectively. For people aged 70 to 89, it is 46 percent, 55 percent, 67 percent and 71 percent of the peak, respectively. 19 The existing provisions obviously cannot well protect the interests of the elderly.
D. Deficiencies in the determined guardianship system
Determined guardianship system is stipulated to “guard against one’s own judgment declining in the future, and an agent is given the authority by a deed of agency in respect of guardianship affairs in advance, including his/her daily life, nursing care, and property management.” 20 One of its values is to fully respect the will of the person under guardianship, thus becoming an indispensable part of the modern guardianship system. Although the Law on the protection of Rights and interests of the Elderly and the General provisions of Civil Law stipulate the system of determined guardianship, the specific implementation method of determined guardianship is not stipulated. Determined guardianship determines the guardian through determined guardianship agreement. The legislation only stipulates that the guardian shall be determined in written form, but the registration and notarization procedures of determined guardianship agreement are not stipulated, which lacks procedural guarantee. 21
E. The absence of supervision system of guardianship
Although article 36 of the General provisions of Civil Law provides for the revocation of guardianship, it does not constitute a comprehensive supervision system of guardianship. Once the determined guardianship agreement comes into effect, the person under guardianship has lost or partially lost his/her capacity for civil conduct, so he/she can no longer evaluate or supervise the act of his chosen guardian. 22 Thus, there must be supervisors to supervise the acts of guardians. The revocation of guardianship in the General provisions of Civil Law applies only under “serious” circum- stances, namely “perform acts that seriously impair the physical and mental health of the person under guardianship”; “negligent in performing his/her guardianship duties, or is unable to perform his/her guardianship duties and refuses to entrust part or all of his guardianship duties to another person, thus causing the person under guardianship to be in a critical condition”; and “perform other acts that seriously infringe upon the legitimate rights and interests of the person under his/her guardianship”. That is why it cannot play the role of the supervision system. In practice, the situation that guardians do not earnestly perform their guardianship duties, abuse their guardianship rights or neglect to perform their duties, or infringe upon the personal or property rights and interests of the person under guardianship happens from time to time, which often makes it difficult to give timely relief to the person under guardianship. In order to protect the legitimate rights and interests of the elderly and urge guardians to properly perform their guardianship duties, it is necessary to stipulate a systematic and scientific supervision system of guardianship.
III. Reconstruction and Improvement of Adult Guardianship and Support System in the Civil Code
The General provisions of Civil Law is the first chapter of the Civil Code, which went into effect on October 1, 2017, and the classification and cataloging of the Civil Code is under way. It is a significant issue to think how to improve and complete the deficiencies of the provisions of adult guardianship in the General provisions of Civil Law in the process of the classification and cataloging of the Civil Code? It is suggested that when compiling the Civil Code on Marriage and Family, the guardianship and support system should be reconstructed and improved by summarizing the effect of guardianship practice under the General provisions of Civil Law since its implementation, referring to the achievements in adult guardianship legislation reform in developed countries and regions, and adapting to the needs of the aging society.
A. Establish the “dual subject” protection pattern of adult guardianship and support system
The provisions of the guardianship system in the Section 2 “Ability” of Chapter 1 “Person” of the General principles of the Japanese Civil Code mainly involves the ruling on the beginning of guardianship, protection, and support, and the revocation of the ruling on the beginning of guardianship, protection, and support between adult person under guardianship and his/her guardian, the person being protected and his/her protector, and the person being assisted and his/her assistant, etc.. There are two chapters of “guardianship” and “protection and support” in the text of “Family”. 23 Only the “guardianship” system is stipulated in the General provisions of Civil Law in China. This paper believes that an adult support system should be established to protect adults with disability. The legislative purpose of the adult support system is to emphasize respect for disabled adults, their own wills and focus on the humanistic care and protection of the adults with disabilities.
The purpose of using the word “support” instead of “guardianship” for these adults is to highlight the difference from the traditional declaration system of prohibition. Its main concept is to attach importance to the human rights of adults with disabilities, respect their residual will ability and self-determination, and assist them to participate in social life on an equal and normal basis without discrimination. 24 Some Chinese scholars also put forward the “ternary” pattern of guardianship, protection and support, and carry out different rights of guardianship, protection and support: the rights of a guardian includes legal agency, property management, and revocation; the main right of a protector are consent and revocation; there are “consent-based” (co-determined), “agency-based” and “based-on-both” supports. Different types vary the rights of support. 25 I think, due to adult guardianship established on the basis of natural persons’ capacity for civil conduct in the General provisions of Civil Law cannot be changed. What can be improved is to adopt the “dual” protection pattern of guardianship and support system in the classification and cataloging of the Civil Code, that is, to add a support system in the provisions on marriage and family to close the loopholes in the existing legal provisions. For the elderly, guardians shall be assigned for the elderly who have no civil capacity or limited civil capacity, and supporters shall be assigned for the elderly with mental disorders, cognitive difficulties or physical disabilities when necessary.
B. Expand the scope of protected adults
Adults with disabilities, including mental impairment, intellectual disabilities and physical disabilities, should be particularly protected through guardianship, support and other systems, which has become a consensus among countries around the world. The substantive requirements of the French adult protection system are “the ability of will is diminished by the decline caused by illness, weakness and age” and “the ability of expression is impaired by the decline of physical ability”, and further categorized requirements stipulates that “court protection” should be carried out if “there is a need to protect acts in the field of civil life”; “Guardianship” shall be carried out if “there is a need for continuous agency in respect of acts in the field of civil life”; If “they are not unable to engage in conduct, but for civil conduct, it is necessary to obtain advice or supervision”, then “protection” should be carried out. 26 The German adult care system (including guardianship and support) is applied to: (1) four types of mental disabilities, namely non-physical mental disorders, mental impairment caused by physical damage, mental impairment caused by drug dependence, and neurosis; (2) intellectual disability can be divided into two categories: congenital or childhood illness-induced mental retardation, including mild mental retardation in the traditional sense (IQ between 50 and 69), moderate mental retardation (IQ between 20 and 50), and high mental retardation (IQ less than 20); (3) mental damage refers to the sequelae of mental infringement as a result of mental illness; (4) physical disabilities, including visual disabilities, speech disabilities, severe hearing disabilities and serious diseases that cause patients to be almost unable to move, such as severe heart disease, arthritis, incontinence, which require catheterization, etc.. 27 The adult guardianship system in the General provisions of Civil Law in China is only applicable to persons without or with limited capacity for civil conduct, which is not conducive to the protection of all adults with disabilities. Referring to the provisions of other countries and regions, and based on China’s national conditions, I believe that the object of adult guardianship and the object of adult support are adults who cannot deal with their own affairs, due to the mental, intellectual and physical disabilities. People with mental retardation include adults with low IQ, those who have a mental disabled, senile dementia and critical patients who cannot carry out normal mental judgments; people with physical disabilities include those with visual impairment, hearing impairment, language impairment, limb impairment, major organ dysfunction and people in a vegetative state. 28
C. Improve the content of the determined guardianship system
Determined guardianship respects the guardian’s right of self-determination and can guarantee the realization of his/her subjective will to the maximum extent. Therefore, determined guardianship should take precedence over legal guardianship. Determined guardianship is of great importance. Japan has a special law “Arbitrary Guardianship Law” to regulate arbitrary guardianship. The duty scope (full or partial) of any guardian is determined based on arbitrary guardianship contract. In order to protect the legality and validity of the contract, arbitrary guardianship contract must be notarized by a notary. The registration authority registers an arbitrary guardianship contract. When the adult’s ability of judgment declines due to mental cognitive impairment, an arbitrary guardian will take effect when the guardian is appointed by a family referee at the request of relatives. 29 The regulations on determined guardianship in the General provisions of Civil Law in China are too simple and need to be improved. First, determined guardianship concerns the important matters of the person and property of the person under guardianship. In order to guarantee its authenticity and legitimacy, the determined guardianship agreement should be notarized by the notary organ. Second, the items concerning guardianship in the guardianship agreement can be either full or partial guardianship. In the case of partial guardianship, legal guardianship is still applicable in the absence part of the agreement. Third, in order to ensure that the determined guardian performs his guardianship duties faithfully, comprehensively and diligently, it is necessary to establish a supervisor system. The supervisor can be appointed by the person under guardianship in the guardianship agreement. In addition, the establishment and effectiveness of the guardianship agreement, multiple determined guardians, the rights of the determined guardians (including the right to claim for remuneration, the right to return fees, etc.), the change of the determined guardianship and other content should also be involved.
D. Supplement and perfection of the supervision of guardianship and support system
In view of the fact that the person under guardianship or being supported has mental, intellectual, physical disabilities, he/she cannot or finds it difficult to handle his/her own affairs. Thus he/she cannot supervise the behavior of the guardian or supporter. When the guardian or supporter fails to perform his/her duties, or handles affairs in violation of the duty of care, or is in danger of infringing upon the interests of the person under guardianship or the cared person, corresponding restrictions should be carried out. The provisions of the Japanese Civil Code can be used for reference. Article 849 provides for the appointment of adult guardian supervisors, that is, “when the family court deems it necessary, it may, at the request of adult guardians, their relatives or adult guardians, or in accordance with its authority, appoint adult guardian supervisors”. At the same time, article 851 stipulates the duties of supervisors: (1) supervise the affairs of guardians; (2) in the absence of a guardian, request the family court to select and appoint one without delay; (3) deal with urgent cases if needed; (4) ensure that any act by the guardian or the representative of guardian that conflicts with the interests of the person under guardianship shall be dealt with by the guardian on behalf of the person under guardianship. The selection and appointment of protection supervisors and support supervisors can basically refer to the circumstances of guardian supervisors. China’s future civil code on marriage and family should also set up a supervision system, which stipulates the selection of supervisors, matters of supervision, the duties of supervisors, and the revocation of the qualification of supervisors and the replacement of supervisors, so as to supervise the behavior of guardians and supporters, and protect the interests of the person under guardianship or being supported.
E. Strengthen the State responsibility in the guardianship and support of the elderly
Strengthening State obligations and responsibilities in guardianship and support for the elderly is also a global trend for protecting the interests of the elderly. The modern guardianship system has turned to social law. The law of guardianship and support with the combination of public and private forces has become an indispensable part of social law system of the aging society. 30 Although there are provisions stipulated in the General provisions of Civil Law that the civil affairs department of the State and the residents’ committee and the villagers’ committee of the place where the person under guardianship lives should assume the role as the guardian, the guardianship system still tends to emphasize the autonomy of relatives and family responsibilities, ignoring the obligations and responsibilities of the State. At present, the “4-2-1” nuclear family is common in China. For the guardianship and protection of the elderly, we should not only rely on the family, but also increase State support and improve the relevant system of protecting the rights and interests of the elderly. The most important responsibility of a country is to take care of its people, 31 which should be correspondingly embodied in the Civil Code? The provisions concerning guardianship and support in the Civil Code should overcome the over-generalization of principle, and define the subject of responsibility and enhance the operability of the law. This is also the requirement of the State to undertake the responsibility of protecting the rights and interests of the elderly.
IV. Conclusion
From the reform practices of different countries and regions of the guardianship system, the relationship between the traditional guardianship system and the lack of capacity is weakening; adult guardianship, care and support systems, such as respect for people with disabilities to self-determination, are established to help and aid people with disabilities, neuropsychology, using residual judgment to decide to realize their own interests. The same theme is reflected in the French judicial protection system of guardianship and assistance, German adult care system, and Japanese arbitrary guardianship and assistance system. We should grasp the proper time when compiling the civil code on marriage and the family to reconstruct and improve the existing guardianship system, establish the binary mode of both adult guardianship and support, and present to the world a legal system of balanced “autonomy” and “heteronomy”, a presentation of the concepts of “right of self-determination” and “normalization”, and pluralistic means for protection and aid. The completion of these systems, obviously, is helpful to further protect the legal rights of the elderly.
(Translated by Li Xiang)
* WANG Liping (王丽萍), Professor and Doctor of Law, Law School, Shandong University.
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4. National Bureau of Statistics of the PRC, China Statistical Yearbook 2018.
5. “Scholars: China will have 329 million people over the age of 65 by 2050”, Phoenix Finance.
6. According to the 2010 Annual Statistical Bulletin on the Development of China’s Undertakings for the Elderly released by the China office on aging, by the end of 2010, there were 33 million partially and completely dis- abled elderly people in China’s urban and rural areas, accounting for 19 percent of the total elderly population. On February 24, 2016, according to the Report on the Development of Livable Environment for the Elderly (2015) released by China Research Center on Aging, the elderly population in China has reached 25 million, and the disabled elderly population has exceeded 40 million. See Dang Junwu and Zhou Yanmin, Report on the development of livable environment for the elderly in China (2015) (Beijing: Social Sciences Academic Press, 2016).
7. Yang Lixin, “The legislative breakthrough and related problems of the elderly guardianship system in China”, Chinese Journal of Law 2 (2013).
8. Concerned individual or organization basically include: other person that has guardianship qualification according to law, resident committee village committee school medical establishment women federation, disabled person’s federation, minor protection organization and the civil administration branch that sets up by law. If an individual or an organization other than the civil affairs department fails to apply to the people’s court for cancellation of the guardianship, the civil affairs department shall apply to the People’s Court.
9. The Mental Health Law of the PRC implemented in 2013 is a law that regulates the treatment, ensure the rights and promote the recovery of the mentally disordered. The term “mentally disordered”, shows both progress and limitation, is used to replace “mental patient”. Natural person with mental disorders is not treated as common social person with enough humanistic care.
10. Wang Liping, “Review and prospect of codified civil legislation in China”, Journal of Shandong university 5 (2017).
11. UN Issues on Aging, United Nations Principles for the Elderly, the official website of the UN.
12. Li Xia, “The modern turn of adult guardianship system”, Jurisprudence of China 2 (2015).
13. Liu Dekuan, “A comparative study of the adult guardianship system centered on Japan, Taiwan and Germany”, Yuedan Journal of Law 10 (2003).
14. Wei Zhenying, The Civil Law (Beijing: Peking University Press, 2000), 55.
15. Kang Na, “Research on the guardianship system of the elderly in China”, Studies in Law and Business 4 (2006).
16. Yamamoto Keizou, General handout of civil law, trans. Xie Gen (Beijing: Peking University Press, 2004), 51. Cited from Zhang Xuejun and Zhang Lei, “On adult guardianship system”, Jianghai Academic Journal 5 (2005).
17. Wang Liming, Science of Civil Law (Beijing: China Renmin University Press, 2000), 57.
18. Guo Mingrui, The Civil Law (Beijing: Law Press, 2007), 53.
19. Liu Yuanchao, “Intelligence of the elderly”, Elderly Times, February 11, 2012.
20. Suzuki Shodai, “The status quo of Japanese adult guardianship system after modification and the supporting public facilities and system”, trans. Udagawa Kousa, in Study on Chinese and Japanese Civil and Commercial Laws, vol.1, ed. Qu Tao (Beijing: Law Press, 2003), 370.
21. Yang Lixin, “The legislative breakthrough and related problems of the elderly guardianship system in China”, Chinese Journal of Law 2 (2013).
22. Ibid.
23. Qu Tao, The latest Japanese civil code (Beijing: Law Press, 2006), 5-9 and 178-189.
24. Liang Huixing, Reasons attached to the draft of Chinese civil code: relatives (Beijing: Law Press, 2013), 244.
25. Li Xia, “The modern turn of adult guardianship system”, Jurisprudence of China 2 (2015).
26. Tomoji Inamoto, Family Law (Tokyo: University of Tokyo Press, 1985), 137-141. Cited from Zhang Xuejun and Zhang Lei, “On adult guardianship system”, Jianghai Academic Journal 5 (2005).
27. Tayama, Legal Studies after adulthood (Volume 2) (Tokyo: Tokyo Seimon Press, 2000), 290. Cited from Zhang Xuejun and Zhang Lei, “On adult guardianship system”, Jianghai Academic Journal 5 (2005).
28. Liang Huixing, relatives, 245.
29. Udagawa Kousa, “On the modification of adult guardianship system in Japan”, in Study of Chinese and Japanese Civil and Commercial Laws (Volume 1), ed. Qu Tao (Beijing: Law Press 2003), 391-392.
30. Li Xia, “The modern turn of adult guardianship system”, Jurisprudence of China 2 (2015).
31. Guo Daohui, “Social equity and State responsibility”, Rule of Law Studies 1 (2007): 37.
