Protection of the Human Rights of Those Under Guardianship in the General Provisions of the Civil Law - JOURNAL - Humanrights

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Protection of the Human Rights of Those Under Guardianship in the General Provisions of the Civil Law
July 13,2018   By:CSHRS

 Protection of the Human Rights of Those Under Guardianship in the General Provisions of the Civil Law

XIA Yinlan*

Abstract: Based on the guardianship system in the General Principles of the Civil Law, the General Provisions of the Civil Law establish the three concepts of respecting the true will of the ward, benefiting the ward to the greatest extent, and moderate intervention of public power in guardianship. The three concepts are embodied in the specific provisions of the guardianship system, highlighting respect for and protection of human rights under the spirit of the Constitution as well as the human rights concept of protecting the interests of this vulnerable group, improving the scope of protecting the human rights of minors, the disabled and the elderly in the Chinese guardianship system. The General Provisions of the Civil Law expand the functions and types of the guardianship system, enrich and perfect the guardianship system for minors, and clearly stipulate the conditions and means for disqualifying guardians, and arranging temporary custody and state custody. They expand the scope of guardianship for minors, respond to the reality of increasing guardianship needs and the aging of Chinese society, dovetail with the international community’s concept of respecting and safeguarding the rights of the elderly and adults with disabilities, and reflect the law moving with the times. The Specific Provisions on Marriage and Family under the General Provisions of the Civil Law now being compiled should refine and enrich the guardianship system under the framework of the guardianship system in the General Provisions, so that they become the rules of conduct that is practically feasible and enforceable in judgments.

Keywords: guardianship ♦ legislative ideas ♦ minors♦adults with disabilities ♦human rights protection

On March 15, 2017, the Fifth Session of the Twelfth National People's Congress passed the General Provisions of the Civil Law of the People's Republic of China(hereinafter referred to as “General Provisions of the Civil Law”). The General Provisions of the Civil Law established the basic principles, basic system, and framework for the Civil Code, and regulated the basic rules of social life, marking the completion of the first step in the compilation of the Chinese Civil Code. Civil law, is fundamental to private law as it regards the protection of people as the core and their rights as the base. It systematically regulates the various personal and property rights enjoyed by natural persons, legal persons, and unincorporated organizations in civil activities. Therefore, the civil code is regarded as the ultimate of modern legal culture, and is praised as the symbol of sound rule of law.1Guardianship is the legal means for protecting the legal rights of people without civil capacity or with limited capacity for civil conduct, helping them to realize their own interests through civil legal acts. The relationship and interaction between the guardianship system and the relevant systems including the civil subject system and the marriage and family system is an indispensable part of the civil code, and is also one of the key systems for improvement under the General Provisions of the Civil Law. The guardianship system in the General Provisions of the Civil Law, together with the legal regulations on guardianship including the Law on Marriage, Law on the Protection of Minors, the Law on the Protection of Rights and Interests of Women, the Law on the Protection of the Rights and Interests of the Elderly, and the Law on the Protection of Disabled Persons jointly constitute the legal guardianship system in China.

The guardianship system of the General Provisions of the Civil Law carries out the principles and spirit of the UN human rights conventions such as the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities. Drawing on the legislation examples from other countries and regions and recognizing China's national conditions and practices. China has set up the guardianship system with Chinese characteristics that “takes family guardianship as the basis, social guardianship as the supplement and the state guardianship as the cushion for those most in need”.2The General Provisions of the Civil Law enrich the guardianship system in China on the basis of the General Principles of the Civil Law guardianship system, and mark a major breakthrough in the concept of guardianship. They establish the three concepts of respecting the true will of the ward, benefiting the ward to the greatest extent, and moderate intervention of public power in guardianship. The three concepts are embodied in the specific provisions of the guardianship system, highlighting respect for and protection of human rights under the spirit of the Constitution as well as the concept of human rights of protecting the interests of the vulnerable groups, improving the scope of protecting the human rights of minors, the disabled and the elderly in the Chinese guardianship system.

Ⅰ. Progress in the Legislative Concept of the Guardianship System under the General Provisions of the Civil Law

Modern guardianship shall not only respect the guardian's wishes, but also respect the will of the ward to a greater extent. It shall benefit the ward. Guardianship has evolved from a purely private sphere to the public sphere, and public power starts to intervene in the domestic sphere. It exercises supervision and intervention in the guardianship behavior of the guardians through such measures as guardian surveillance and deprivation of the right to guardianship, and provides ultimate protection for the ward through such means as social guardianship and state guardianship. The General Provisions of the Civil Law made progress and breakthroughs in three respects in the concept of guardianship legislation: first, respect the true will of the ward; second, most favor the ward; third, moderate intervention of public power in guardianship.

A. The General Provisions of the Civil Law establishes the principle of respecting the true will of the ward

The modern guardianship system was established for the benefit of the ward. Establishing the guardian and executing guardianship are closely related to the interests of the ward. The ward has the best knowledge about themselves and respecting their will is in line with the intention of the guardianship system. Respect for the will of the ward includes fully considering the true will of the ward when designating or selecting a guardian for the ward, and also the guardian respecting the true will of the ward during the guardianship.

Respecting the true will of the ward is a consensus reached by the international community. For example, the 1989 Convention on the Rights of the Child clearly stipulates that children have the right to make decisions on their own affairs, and have the right to express their opinions and participate in social life. Article 12 of the Convention stipulates that: 1. State parties shall assure the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.3Article 4 (3) of the Convention on the Rights of Persons with Disabilities stipulates that In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, State parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

Respect for the true will of the ward is the true embodiment of the autonomy principle of the General Provisions of the Civil Law in the guardianship system. The principle of respecting the true will of the ward is beneficial to the selection of the guardian who is most trusted by and most favorable to the ward, and also makes up for deficiencies in the General Principles of the Civil Law and related guardianship legislation. The principle of respecting the true will of the ward is embodied in the guardianship law: First, guardianship is premised on respect for the true will of the ward. Article 30 of the General Provisions of the Civil Law stipulates the way in which the agreement determines guardian and emphasizes that “the guardian determined through agreement should respect the true will of the ward”. Second, the designated guardian should respect the true will of the ward. Article 31 (2) of the General Provisions of the Civil Law stipulates that residents'  committees, village committees, civil affairs departments or people's courts should respect the true will of the ward when designating the guardian; third, a person with full capacity for civil conduct can determine the guardian through a written agreement. Article 33 of the General Provisions of the Civil Law stipulates that an adult with full capacity for civil conduct may determine his or her guardian in writing. Fourth, the true will of the ward is respected during guardianship execution. Article 35 (2) and (3) of the General Provisions of the Civil Law emphasizes that The guardian of a minor shall, in the performance of their duty as guardian, respect the ward's true will when making decisions related to the ward's interests according to the ward's age and intelligence. The guardian of an adult shall, in the performance of the duty of guardianship, respect the ward's true will to the fullest extent. The guardian shall not interfere with any affairs that the ward is capable of handling alone. This provision takes into account and distinguishes the difference in needs of the will of the ward of different types and special situations.

B. The General Provisions of the Civil Law establishes the principle of “benefiting the ward to the greatest extent”

The principle of “benefiting the ward to the greatest extent” requires that all guardianship measures can only be in the best interests of the ward. The guardian must handle the matters of the ward in the best interests of the ward, pay special attention to the will of the ward and their ideas about life, and focus on the self-determination of the ward. The principle of the best interests of the child is the most important basic principle of the Convention on the Rights of the Child. Although the Convention does not contain detailed clauses on the principle of the best interests of the child or there is no internationally accepted standard, the principle of the best interests of the child can be understood in three aspects according to the purpose of the formulation of the Convention and the main contents of the Convention: First, it is stressed that the child is protected as an individual and the subject of rights rather than merely as a member of a family or group. Second, the principle is used as a guideline dealing with matters related to children. Third, it is the guideline clause for the protection of children by the legislation and judiciary.4

The principle of benefiting the ward to the greatest extent prevents the guardian from infringing on the person or property of the ward, and prevents the guardian from being negligent in performing or failing to perform the duties as guardian. It also prevents the ward from making decisions to the detriment of their own interests. This principle is embodied in the laws and regulations as follows: First, the designated guardian should observe the principle of benefiting the ward to the greatest extent. Article 31 (2) of the General Provisions of the Civil Law on the designated guardian and Article 36 on re-designation of guardian all emphasize the principle of “benefiting the ward to the greatest extent”. Second, the implementation of guardianship should be based on the principle of benefiting the ward to the greatest extent. Article 35 (1) of the General Provisions of the Civil Law clearly stipulates that the principle of “benefiting the ward to the greatest extent” is the basic principle for the guardian to perform guardianship duties. The guardian shall not dispose of the property of the ward except for the benefit of the ward.

C. The General Provisions of the Civil Law establish the principle of moderate public power in guardianship

In order to protect the interests of the ward, guardianship is provided to compensate the capacity of natural persons without capacity or limited capacity, in order to protect their legal rights. This not only involves the private rights of citizens, but also requires state public power to intervene appropriately to ensure effective guardianship. Since the 1990s, making private law into public law under the guardianship system has been a major trend in the development of the guardianship systems in all countries. The purpose of modern guardianship is to protect the interests of the ward. This system embodies the social public functions and has the nature of public law. The public power of the state should appropriately intervene to ensure the normal operation of guardianship relations. The public law nature of guardianship itself justifies state intervention, and legal paternalism is the theoretical basis of state intervention, namely the law limits the autonomy of the parties for their own interests.5 Therefore, it can be considered that the modern guardianship system is a system in which specific individuals, social organizations, and official institutions protect and assist the person and property of the ward under the supervision of the state.

The protection of minors is an important part of the public power intervention in guardianship. Several articles in the Convention on the Rights of the Child stipulate the principle of public power intervention. Article 19 of the Convention clearly states that State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Article 20 stipulates that a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.6 Public power intervenes moderately in the guardianship relationship. The so-called “moderation” should be based on legal provisions, and be geared to protecting the interests of the ward. It is necessary to fully consider whether it is in the best interests of the child and whether it is necessary. The interests of the parents are not always consistent with those of the children. In some situations, there exists conflict or a real danger of conflict. In order to protect the interests of disadvantaged minors, the exercise of parental responsibilities shall not endanger or shall not have the possibility of endangering the physical and mental health of children and their property status. According to Article 4 (1) of the 1996 European Convention on the Exercise of Children's Rights, when the interests of the bearer of parental responsibility are in conflict with the interests of the child, the judiciary should appoint other persons or subjects as special agents for children and the rights are exercised by the agents on behalf of the children or by children with recognition capability. This means that in case of any conflict of interests between parents and children, the children's interests have priority, and the interests of children must be protected first. Article 1666 (1) of the German Civil Code stipulates that parents should be deprived of the right to take care of children in certain matters in order to prevent the children from being exposed to danger. Within the scope of protection, parental care is subject to corresponding restrictions. Parents have no jurisdiction over matters under protection, nor have legal agent rights Article 1630 (1).7 Some countries stipulate different protection measures for the rights of children according to different circumstances. Victims and their public authorities may make selection according to different circumstances, including appointing special agents for minors, restricting parents in the right of access to minors, and restricting or even depriving parents of the right to fulfill their parental responsibilities. The public authorities may also appoint other persons or organizations to supervise the parental responsibility bearer who manages the property of minor children. There are two main duties involved in the state intervention in guardianship. First, the state acts as a guardian when it considers that there is no appropriate guardian. Second, the state is the ultimate guardian supervisor when there is an appropriate guardian.8

The General Provisions of the Civil Law of China regard parents as the primary bearers of guardianship of minors. When the parents cannot serve as guardian or are not fit to fulfill that role, other close relatives are the primary candidates for guardianship. When parents or other close relatives cannot serve as guardian or are unqualified, the society and the state bear the ultimate responsibility. The General Provisions of the Civil Law clearly stipulate the way in which public power can intervenes in guardianship and protects the interests of the ward. First, the state should designate a guardian for the ward according to law. If there is dispute over the selection of the guardian, the residents'  committee, village committee, or civil affairs department at the place where the ward lives designates the guardian. Second, if the ward temporarily in an unprotected state, the state should assume temporary guardianship. The village (residents) committee at the place where the ward resides, the relevant organizations stipulated by the law, or the civil affairs department serve as temporary guardian. Third, if the guardian fails or is slack in performing the guardianship duties, the people's court may revoke guardianship and put in place temporary guardianship measures. Fourth, the state assumes guardianship responsibility for a ward without a proper guardian.

Ⅱ. General Provisions of the Civil Law Expand the Type and Function of the Guardianship System

A. Types of guardianship

The types of guardianship, pursuant to the General Provisions of the Civil Law, are mainly classified by two methods. First, based on the wards, guardianship can be divided into guardianship of minors and guardianship of adults. Second, based on the criteria for the channels and methods of the legal relationship for guardianship, guardianship can be legal guardianship, designated guardianship, guardianship by testament, intended guardianship, and state guardianship. In the second method, legal guardianship and designated guardianship are the traditional types of guardianship in the General Principles of the Civil Law. The General Provisions of the Civil Law offer development and changes in the contents of specific regulations. Guardianship by testament, intended guardianship, and state guardianship are new types of guardianship under the General Provisions of the Civil Law.

1. Legal guardianship

Legal guardianship refers to guardianship that occurs directly in accordance with the scope and order prescribed by law. Legal guardianship is the most basic and important guardianship in China. According to the General Provisions of the Civil Law, legal guardianship includes legal guardianship of minors and legal guardianship of adults. For instance, in the legal guardianship of minors, the parents of minors are the legal guardians of minor children; if the minor's parents are deceased or are incapable of fulfilling their responsibilities, the grandparents, brothers and sisters with guardianship capability can serve as guardians in sequence. In the absence of above-mentioned statutory guardians, or when the aforementioned statutory guardians are not capable of guardianship, other individuals or organizations willing to act as guardians may also act as guardian, subject to the consent of the residents'  committee, village committee or civil affairs department at the place where the minor resides. For adults without capacity for civil conduct or limited capacity for civil conduct, the spouses, parents, children, and other close relatives with guardianship capability serve as the guardians in sequence. In the absence of the aforementioned close relatives as legal guardians, or when abovementioned close relatives are not capable of guardianship, other willing individuals or organizations may also act as guardians, subject to the consent of the residents'  committee, village committee or civil affairs department at the place where the ward resides. Compared with the General Principles of the Civil Law, this provision expands the scope of legal guardians of minors and removes the consent right of the employer of the minor's parents for other individuals or related organizations who serve as the guardian of minors. This is exercised by the civil affairs department. The provisions of the General Provisions of the Civil Law are in line with the trend of social development in China. The intervention of government departments and social organizations in guardianship is conducive to the mobilization of social resources and the protection of the interests of the ward. The cancellation of the employer's consent rights reflects the change in the attributes and functions of employers under the market economic conditions.

2. Designated guardianship

Designated guardianship refers to guardianship designated by civil affairs departments, community mass organizations, or the people's court when there is a dispute over the determination of the guardian. According to Article 31 of the General Provisions of the Civil Law, when agreement cannot be reached among persons with legal guardian qualifications on which of them should act as guardian, the residents'  committee, village committee, or civil affairs department at the place where the ward resides should designate the guardian. Any parties not satisfied with the decision may apply to the local people's court for the designation of who should be a guardian; the parties concerned may also apply directly to the people's court for the designation of a guardian. The designation of a guardian by the people's court is final, and the designated guardian must perform duties of guardian. This provision of the General Provisions of the Civil Law removes the qualifications of minor's parents or the ward's employer to designate the guardian, adds the civil affairs department as the institution for designating the guardian, and enhances the role of the civil affairs department. The appropriate intervention of public power is more conducive to the protection of the legal rights of the ward.

3. Guardianship by testament

Guardianship by testament refers to guardianship based on testament made by the parents. Article 29 of the General Provisions of the Civil Law stipulates that the parents of the ward who are the current guardian may specify guardian through testament. A guardianship testament can only be made by the parents who are guardians, and other legal guardians may not designate another guardian in this way. Parents and children have the closest blood relationship. The parents are guardians of the first order and are most concerned about the healthy growth of their children. Compared with other individuals or organizations, parents are more willing to make sacrifices for their children's interests, without consideration of their own losses of gains. Under the guardianship by testament, the parents select the trusted person who benefits the ward to the greatest extent as the guardian by means of testament. Allowing parents to designate guardians for their minor children by means of their wills embodies the principle of benefiting the child to the greatest extent, so as to best protect the children's interests. Parents can designate guardians for their minor children through testament, and also designate the guardian for their adult children with limited capacity or without capacity for civil conduct. The testament on guardianship by testament must meet the substantive requirements and formal requirements for the entry into force of testament stipulated by the Chinese law on inheritance. Guardianship by testament that meets the conditions for the validity of testament has priority. Except for legal reasons, the guardian designated by the testament has priority over the other legal guardians as the guardian.

4. Intended guardianship

Intended guardianship is when an adult with full capacity for civil conduct chooses a guardian according to his or her wishes and enters into a guardianship contract with the guardian to entrust part or all of their affairs to the nominated guardian. In the event of the guardianship being required, the trustee bears the guardianship responsibility as per the contract.9Article 33 of the General Provisions of the Civil Law stipulates that an adult with full capacity for civil conduct may, by consulting in advance with his or her close relatives or other individuals or organizations willing to act as a guardian, determine his or her guardian in writing. When the adult loses all or part of his or her capacity for civil conduct, the guardian determined by consultation shall perform the duty of guardianship of the adult. Intended guardianship is a concrete manifestation of the principle of voluntariness in the General Provisions of the Civil Law, and respects the autonomy of the parties and the right to self-determination. When the adults have full capacity, they can determine their own guardian in advance according to their own situation and their relationship with the trustee by means of intended guardianship, so as to receive better care in the event of their loss or partial loss of civil capacity and properly protect their own rights and interests. The creation of intended guardianship is premised on the conclusion of the guardianship contract. The guardianship contract must meet the substantive requirements and formal requirements for the contract to take effect under the contract law. The intended guardianship which meets the requirements for the entry into force of the contract has priority over the legal guardianship in the application of the law.

5. State guardianship

Under state guardianship, the public authority performs its guardianship duties as a guardian and assumes guardianship responsibilities under statutory conditions. Article 32 of the General Provisions of the Civil Law stipulates that where there is no person legally qualified to act as the guardian, the civil affairs department, the urban residents' committee, the villagers’ committee of the place of the ward’s domicile it satisfies the conditions for guardianship may act as the guardian. Article 31(3) provides that if the personal rights, property rights, and other lawful rights and interests of the ward are under no protection, the urban residents'  committee, villagers'  committee, relevant organization prescribed by the law, or civil affairs department of the place of the ward's domicile shall act as the provisional guardian. State guardianship is a concrete measure taken by the state to protect citizens'  right to survival and development. Guardianship, especially guardianship of minors, is not only the responsibility of the family, but also the join responsibility shared by the family, society, and the state. The state intervenes in guardianship through the use of various social and public mechanisms and measures and fulfills its duties of protecting the legitimate rights and interests of this vulnerable group. Article 36 of the General Provisions of the Civil Lawprovides that: “Where a guardian falls under any of the following circumstances, the people's court shall, upon application of the relevant individual or organization, disqualify the guardian, arrange necessary provisional guardianship measures, and designate another guardian in accordance with the law under the principle of most benefiting the ward: (1) Acting seriously to the detriment of the ward's physical and mental health. (2) Being slack in performing the duty of guardianship, or being incapable of performing the duty of guardianship but refusing to delegate part or all of the duty of guardianship to another person, which causes distress of the ward. (3) Otherwise seriously infringing upon the ward's lawful rights and interests. The intervention of public power in the field of guardianship is a trend in the reform of guardianship systems in all countries. It is also an obligation to fulfill the requirement under the Convention on the Rights of the Child that a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.10

B. Function of guardianship

According to the General Provisions of the Civil Law, the functions of the guardianship system in China have been expanded from making up for the ability defect of the persons without civil conduct or with limited capacity for civil conduct, protecting the legal rights of the ward and safeguarding the stability of social order to providing the path of rights protection for disabled adults with full capacity for civil conduct and providing alternative social security for the ward.

1. Compensate the ability defect of the persons without civil conduct or with limited capacity for civil conduct

For minors and the adults with limited capacity for civil conduct or without civil capacity due to age and mental health, the guardianship system can be used to compensate for their ability defect so that their civil rights capabilities are fully realized. For patients with mental disabilities, a guardian is appointed to represent them in the implementation of civil juristic acts and to supervise and protect the personal rights, property rights and other rights of mentally disabled patients. In addition to minors or mentally disabled patients, elderly persons who are unable to deal with their affairs in whole or in part because of illness or psychological disorders may also establish guardianship to protect their legitimate rights and interests.

2. Protect the legitimate rights and interests of the ward and ensure the stability of social order

Through the guardianship system, agency system, and civil liability system, the guardian can protect the ward, protect them from harm, and protect the lawful rights and interests of minors, adults with limited capacity for civil conduct and adults without civil capacity; on the other hand, the guardian can supervise or prevent people without full civil capacity from committing acts that infringe upon the legitimate rights and interests of others, thus maintaining the normal social order; when minors and patients with mental disabilities commit illegal activities that infringe on the interests of others, the guardian shall bear civil liability if the acts of the ward cause damage to others. The damage caused to the victim may be remedied by stopping the infringement, restituting the original state, and compensating for the loss and so on.

3. Provide the path of rights protection for disabled adults with full capacity

For adult disabled persons with full capacity for civil conduct, the establishment of a system of intended guardianship or a durable power of attorney enables the elderly with decreasing civil capacity or other adults with mental or physical disabilities to make advance arrangements for their lives and property in the future and ensure that they can live in their old age with dignity. Since the 21st century, some countries have established guardianship systems for adults through new legislation or amendments to the existing guardianship laws. For example, civil law countries represented by Japan have pioneered intended guardianship systems. The Anglo-American law system countries represented by the United States have pioneered the durable power of attorney and established the principle of necessity for setting up “protection” for adults, the principle of respecting the intention of individuals, the principle of subsidiary, and the principle of restriction on authorization. Specifically, older persons or other adult persons with disabilities may select in advance guardians whom they trust when they have capacity. The guardian protects the personal rights, property rights and other lawful rights of the ward within the scope of authorization when the said adult is incapacitated or partially incapacitated; take care of the ward in their daily life; protect and manage the property of the ward; engage in civil activities or litigation activities on behalf of the ward.

4. Provide alternative social security for the ward

The establishment of a guardianship system can provide alternative social security. The social security system in China is not sound, and measures such as the public welfare for vulnerable groups such as minors and adult disabled persons have not yet been fully implemented. Therefore, some social security work must be borne by family and relatives. For a long time to come, the family still bears the responsibility of supporting the elderly and nurturing children, caring for sick family members, and providing support and assistance for family members without the ability to work, financial resources or the ability to live independently. At the same time, the General Provisions of the Civil Law clearly stipulate that where a family is unable to or unqualified to set up guardianship for various reasons, or if guardian is disqualified for guardianship, the local residents’ committee, village committee, or civil affairs department shall bear the responsibility of guardianship. In other words, the guardianship system that “takes family guardianship as the basis, social guardianship as the supplement and state guardianship as the cushion for those most in need” protects the lawful rights and interests of minors, adults with limited capacity for civil conduct or without civil capacity, and other adult disabled persons.

Ⅲ. General Provisions of the Civil Law Enrich and Improve the Specific Regulations for the Guardianship System

A. The General Provisions of the Civil Law develop the guardianship system for minors

The General Provisions of the Civil Law stipulate the guardianship system in Chapter 2, Section 2, which includes the guardianship of minors and guardianship of adults. Articles 27 to 39 clearly stipulate the legal guardian’s scope, order, designated guardianship, guardianship by testament, intended guardianship, guardianship dispute resolution procedures, responsibilities of guardian, principles to be observed by guardians in the performance of their guardianship duties, cancellation of guardian qualifications, restoration of guardian qualifications, and state guardianship, etc. Ten articles involve the guardianship of minors. While following the General Principles of the Civil Law on the guardianship of minors, the General Provisions of the Civil Lawupdate the concepts of the guardianship system, enrich the concrete measures, and improve the system of guardianship for minors in China. The minor guardianship system with Chinese characteristics has been established.

Based on the guardianship system in the General Principles of the Civil Law, the General Provisions of the Civil Law develops and enriches the guardianship system for minors, takes the principle of children's best interests and the principle of children's autonomy as the basic concepts and basic principles of guardianship of minors, and embodies this concept in the specific provisions of the guardianship system for minors. It highlights the constitutional spirit of respecting and safeguarding human rights and the legislative concept of protecting the right of minors to survival, development, protection and participation. Article 31 clearly stipulates that the principle of designating the guardian is to respect the opinion of the ward, which is in the best interest of the ward.11 Article 35 clearly provides that: “A guardian shall perform the duty of guardianship under the principle of most benefiting the ward. The guardian shall not dispose of the ward's property unless it is in the ward's best interests. The guardian of a minor shall, in the performance of the duty of guardianship, respect the ward's true will when making decisions related to the ward's interests according to the ward's age and intelligence.”

The General Provisions of the Civil Law preliminarily establishes the state guardianship of minors and strengthens the guardianship functions of the government by designating the guardian, setting up temporary guardianship, and, where necessary, requiring relevant institutions and civil affairs departments to act as a temporary guardian.12 It clearly stipulates the guardian designation procedures, circumstances for revocation of guardianship, revocation procedures and consequences of revocation, and rescue measures. In short, the guardianship system for minors established by the General Provisions of the Civil Law seeks to protect the rights and interests of minors through a variety of measures and forms in an all-round way.

On May 31, 2016, the Supreme People’s Court announced 12 typical cases of infringement on minors’ rights and interests and the revocation of guardian qualifications.13 In one case, in which the party surnamed Lu was disqualified as a guardian, the civil affairs department applied to deprive the biological parents of minors their guardianship right and finally served as the guardian.14 This embodies the concept of protecting the interests of minors through the public power intervention in family guardianship.

B. General Provisions of the Civil Law expand the scope of adult wards

Article 28 of the General Provisions of the Civil Law modifies the objects of guardianship from patients with mental disabilities to “adults without civil capacity or with limited civil capacity” and deletes the appellation “patients with mental disabilities” under the General Principles of the Civil Law, expanding the scope of adult wards.

The scope of adult wards under the General Provisions of the Civil Law is expanded in response to the reality of expanding guardianship needs and ageing in Chinese society and is consistent with the international community's concept of respecting and protecting the human rights of the elderly and adults with disabilities. Traditionally, adults who are completely or partially unable to handle their own affairs due to mental or physical disabilities should be under guardianship. The General Principles of the Civil Law therefore stipulate that the circumstances for the guardianship of mentally disordered patients without civil capacity or with limited capacity. If adults are patients with mental disabilities who cannot identify or cannot fully identify their behavior, the law shall deprive or restrict their capacity, regardless of their actual judgment ability. The design philosophy of the system emphasizes maintaining the security and order of civil trade. It focuses on the personal restriction and property guardianship of the ward, while little attention is paid to assisting the ward in participating in social life, and respecting the true will and right of self-determination of the ward and protecting their rights.

Since the 1990s, the basic human rights of the elderly and adults with disabilities have gained the attention of the international community. The concept of human rights protection with the goal of respecting their surviving capabilities and enhancing their welfare has been a consensus in the international community. In October 1999, the Hague Conference on Private International Law passed the “Convention on the International Protection of Adults”, which includes adults with mental disablement or debilitating mental health, including vulnerable elderly people, especially those with Alzheimer's disease, into the scope of protection. In the development course of international human rights protection practices and theories for adults with disabilities and the elderly, the concepts of “respect for self-determination”, “the ability to use surviving abilities”, and “normalization” is gradually developed and has become the consensus of international human rights protection.15

The General Provisions of the Civil Law focuses on protecting the interests of the ward to the greatest extent, without regarding incapacitated adults as passive objects of social welfare and relief. Instead, it is people-centered and regards them as equal participants in social life, respects their right to self-determination and maintains their normal life. It stipulates that the guardian shall fulfill the guardianship duties on the principle of “benefitting the ward to the greatest extent,” and respect the true will of the ward. Residents'  committee, village committee, civil affairs department or people’s court should respect the true will of the ward while designating the guardian, and respect and protect the surviving ability and self-determination right of adults as far as possible. The guardian must not interfere with the affairs that the ward can handle independently. At the same time, it maintains and promotes the life normalization of adult ward, so that they participate in normal social life. It clearly stipulates protecting and assisting the ward in the implementation of civil legal acts that are consistent with their capabilities. the concept of guardianship changes from the “governance by others replacing the autonomy” under the General Principles of the Civil Law to the “governance by others supplementing the autonomy” under the General Provisions of the Civil Law, from passive protection to promoting the independence of the ward, and thus from isolation from social life to participation in social life.

As China's ageing trend intensifies, the Law on the Protection of the Rights and Interests of the Elderly has adjusted the types of guardianship prescribed by the General Principles of the Civil Law. Article 26 establishes the prototype of intended guardianship in China: Elderly persons with full capacity for civil conduct determine their own guardian through consultations with close relatives or other individuals or organizations that are closely related to them and willing to bear guardianship duties. The guardian bears guardianship duties according to law in the event of the elderly losing their civil capacity in whole or in part. When the General Principles of the Civil Law was promulgated in 1986, it only provided for the circumstances on mental disorders and disability caused by age. It did not cover people with physical or mentally disabled and cannot meet the needs of other adults in need of guardianship. Article 33 of the General Provisions of the Civil Law clearly stipulates the intended guardianship system: An adult with full capacity for civil conduct may, by consulting in advance with his or her close relatives or other individuals or organizations willing to act as a guardian, determine his or her guardian in writing. When the adult loses all or part of capacity for civil conduct, the guardian determined by consultation shall fulfill the duty of guardianship of the adult. This provision meets the social needs and social concerns of China’s middle-aged and elderly persons or adults with disabilities for guardianship, and has both practical significance and reflects the law that moves with the times.

Remarks

The guardianship system under the General Provisions of the Civil Law updates the concepts of the guardianship system, establishes the principle and framework of the guardianship system, adds the types of guardianship, expands the functions of the guardianship system, and further improves the guardianship system in China. The General Provisions of the Civil Law, as the general chapter of the Civil Code, mainly stipulate the basic principles and general provisions of civil activities, and have a leading role in the Civil Code. The guardianship system stipulated in the General Provisions of the Civil Law must be considered and subject to the status of the General Provisions, thus have a leading and framework role in the guardianship system. How to embody the basic principles and framework provisions of the guardianship system established by the General Provisions of the Civil Law and make these into the rule of conduct that is practically feasible and enforceable in judgments is the task of guardianship in the marriage and family.

For starters, the guardianship principle should distinguish between the guardianship of minors and guardianship of adults. The current principle does not distinguish between guardianship of minors and the guardianship of adults. It adopts the concept of “respecting the will of the ward and benefitting the ward to the greatest extent”, without reflecting on the particularity of adult guardianship. This principle should be revised as follows: The guardianship system for minors aims to protect the best interests of the minor under guardianship; the adult guardianship system respects the self-determination of the ward and takes appropriate guardianship measures to help maintain the normal life of the ward. Second, the guardianship supervision system should be added to strengthen guardian’s duties and responsibilities, and urge the guardian to perform guardianship duties according to law. The guardian supervisor may be an individual, organization, or state administrative agency responsible for overseeing the guardian's performance of guardianship duties, safeguarding the legal rights and interests of the ward, and, if necessary, requesting the people’s court to cancel or change the guardian. Third, entrusted guardianship should be added to the type of guardianship. The current categories of guardianship lack the entrusted guardianship system of minors'  parents. It is hard to adapt to the needs of minors for guardianship, especially the needs of left-behind children for entrusted guardianship in real life. It is unfavorable to the realization of the best interests for children. Under the entrusted guardianship, the parents of a minor who cannot perform or partially fails to perform guardianship duties over minor children may entrust all or part of the guardianship duties to a person with guardianship ability, so that it solves the problem of lack of guardianship for left-behind children in social practice. Fourth, refusal and resignation of guardianship should be added. Guardianship carries heavy responsibility and is time-consuming. When a guardian finds it hard to perform guardianship duties due to physical or intellectual or other objective reasons, it should be legally confirmed that guardian has the right of refusal and resignation, and the guardianship system shall be improved. Finally, more detailed and explicit regulations should be made for the guardianship by testament, intended guardianship, guardianship duties, and revocation of guardian qualifications, so that citizens abide by the law and the judiciary enforces the law.

(Translated by NI Weisi)
 

* XIA Yinlan ( 夏吟兰 ), Professor and doctoral tutor of the Institute for Human Rights,  China University of Political Science and Law
1. Liang Huixing, “The Significance of the General Principles of Civil Law to the Times,,” http://www.71.cn/2017/0413/943217.shtml, accessed February 12, 2018.
2. See the speech by Li Jianguo, Vice Chairman of the Standing Committee of the National People’s Congress:“Explanation on the General Principles of the Civil Law of the People’s Republic of China (Draft)” at the 5th session of the 12th National People’s Congress on March 8, 2017. Compilation Group of the Background and Views on General Principles of Civil Law, Background  and Views on General Principles of Civil Law (Beijing: Law Press, 2017), 54.
3. United Nations, Collection of International Documents on Human Rights, vol. I, Part I (Geneva: United Nations Human Rights Office of the High Commissioner, 1994), 163.
4. Wang Xuemei, “Study on the ‘Benefiting to the Greatest Extent’  for the Protection of Children’s Rights,”Global Law Review (2002): 493-497.
5. Sun Xiaoxia and Guo Chunzhen, “The Theory and Practice of Legal Patriarchalism in the United States,” Science of Law 6 (2005): 110-118.
6. United Nations, Collection of International Documents on Human Rights, vol. IPart I (Geneva: United Nations Human Rights Office of the High Commissioner, 1994), 165-166.
7. Chen Weizuo, German Civil Code (Beijing: Law Press, 2015), 505, 510.
8. Wang Zhuqing, Comparative Study of Guardianship System (Beijing: Intellectual Property Publishing House, 2010), 17.
9. Li Xia, “Outline of Intended Guardianship,” Law Science 4 (2011): 118-128.
10. Chen Handan and Chen Boli, “On the Government’s Leading Responsibility in the State Guardianship System for Minors,” Social Science Research 2 (2014): 82.
11. Article 31 of the General Principles of Civil Law, “The urban residents’ committee, villagers’ committee, civil affairs department, or people’s court shall respect the true will of the ward, and designate the guardian from among persons legally qualified for guardianship under the principle of most benefiting the ward.”
12. General Principles of Civil Law, paragraph 3 of Article 31, Article 32, and Article 36.
13. The official WeChat account of the Supreme People’s Court, May 31, 2016 (16:54:08), the Supreme People’s Court announced 12 typical cases of infringements on minors’ rights and interests and the revocation of guardian qualifications.
14. Lu XX is the father of Lu X. Lu XX was sentenced to imprisonment for having had sexual relations with Lu X and made her pregnant, even knowing that Lu X was under the age of 14 and was mentally disabled. The Civil Affairs Bureau of Naxi District, Luzhou City, Sichuan Province, applied to the court to revoke the guardianship right of the respondent Lu XX. The Naxi District People’s Court of Luzhou City held that the respondent, Lu XX, was a guardian of Lu X and had sexually assaulted the ward Lu X, inflicting serious damage on the physical and mental health of Lu X, and was no longer fit to serve as the guardian of Lu X. therefore, the court supported the application filed by the applicant Naxi District Civil Affairs Bureau of Luzhou City in accordance with the law. Because Lu X’s mother suffers from a severe intellectual disability, the mother does not have the ability to live independently, and cannot perform guardianship responsibilities. The girl’s grandparents and grandparents are deceased, and her elder sister is a minor and has no guardianship abilities. In addition, the other relatives of Lu X are also not suitable to serve as guardians of Lu X due to their economic conditions and physical conditions. in accordance with the General Principles of Civil Law of the People’s Republic of China and the Opinions on Handling the Act of the Guardian Infringing on the Rights and Interests of Minors According to Law by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Civil Affairs, the court awarded the ruling to cancel the respondent Lu XX’s guardianship of Lu X according to law, and designated Naxi District Civil Affairs Bureau of Luzhou City as the guardian of Lu X.
15. Li Xia, Study on the Adult Guardianship System - From the Perspective of Human Rights (Beijing: China University of Political Science and Law Press, 2012), 237.

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