The guardianship system in the Civil Code is an important system to protect the legitimate rights and interests of persons with no or limited capacity for civil conduct, and also provides a legal basis for the determination of guardians. The determination of guardianship includes the following aspects:
1. Legal guardianship.
Legal guardianship refers to guardianship that is directly provided for by law.
China's Civil Code stipulates that parents have the obligation to raise, educate and protect their minor children, while adult children have the obligation to support, support and protect their parents. Parents are the guardians of minor children, and if the minor's parents have died, the person with guardianship capacity shall serve as guardian in the following order: (1) grandparents and maternal grandparents; (2) Elder brother or sister; (3) Other individuals or organizations willing to serve as guardians, but with the consent of the residents' committee, villagers' committee, or civil affairs department for the minor's residence.
If it is an adult with no or limited capacity for civil conduct, the following persons with guardianship capacity shall serve as guardians in order: (1) spouse; (2) Parents and children; (3) Other close relatives; (4) Other individuals or organizations willing to serve as guardians, but with the consent of the residents' committee, villagers' committee, or civil affairs department for the ward's domicile.
Legal Provisions: Civil Code
Article 26: Parents have the obligation to raise, educate, and protect their minor children.
Adult children have an obligation to their parents to support, support and protect them.
Article 27: Parents are the guardians of minor children.
Where a minor's parents are deceased or have no capacity for guardianship, the following persons with guardianship capacity are to serve as guardians in order:
1) Grandparents; (2) Elder brother or sister; (3) Other individuals or organizations willing to serve as guardians, but with the consent of the residents' committee, villagers' committee, or civil affairs department for the minor's residence.
Article 28: Adults who lack or have limited capacity for civil conduct are to be the guardians of the following persons with guardianship capacity in order:
a) Spouse; (2) Parents and children; (3) Other close relatives; (4) Other individuals or organizations willing to serve as guardians, but with the consent of the residents' committee, villagers' committee, or civil affairs department for the ward's domicile.
2. Intended guardianship.
Intentional guardianship, also known as guardianship by agreement, means that guardians can be determined by agreement between persons with guardianship qualifications in accordance with the law, but this method of determining heirs should fully respect the will of the ward.
Article 30 of the Civil Code: Persons with guardianship qualifications in accordance with law may agree to determine guardians among themselves. The agreement determines that the guardian shall respect the true wishes of the ward.
3. Designated guardianship.
It refers to the designation of a guardian by the residents' committee, villagers' committee, or civil affairs department for the ward's domicile, where the relevant parties are not satisfied with the designation, they may apply to the people's court for the appointment of a guardian; Relevant parties may also directly apply to the people's court for the appointment of a guardian.
If, before the appointment of a guardian is confirmed, if the minors' lawful rights and interests are unprotected, the residents' committee, villagers' committee, relevant organizations provided for by law, or civil affairs departments for the minor's place of residence are to serve as the temporary guardians.
Testamentary guardianship is a special way of determining a guardian, which means that the ward is a guardian by a parent, and the parents can appoint a guardian through a will. It is important to note that a guardian can only be appointed through a will if the guardian is the parent of the ward.
Article 31 of the Civil Code: Where there is a dispute over the determination of a guardian, the residents' committee, villagers' committee, or civil affairs department for the ward's domicile shall appoint a guardian, and if the relevant parties are not satisfied with the designation, they may apply to the people's court for the appointment of a guardian; Relevant parties may also directly apply to the people's court for the appointment of a guardian.
Residents' committees, villagers' committees, civil affairs departments, or people's courts shall respect the true wishes of the ward, and follow the principle of the best interests of the ward to appoint a guardian among those who have guardianship qualifications in accordance with law.
Where the ward's personal rights, property rights, and other lawful rights and interests are unprotected before a guardian is appointed on the basis of the provisions of the first paragraph of this article, the residents' committee, villagers' committee, relevant organization as provided for by law, or civil affairs department for the ward's domicile is to serve as the temporary guardian.
After the guardian is appointed, it must not be changed without authorization; Where changes are made without authorization, the responsibility of the appointed guardian is not exempted.
4. Entrusted guardianship.
Where a legal guardian or designated guardian is temporarily unable to exercise guardianship for some reason, they may entrust some or all of their guardianship duties to another person.
Article 34 of the Civil Code: The duties of guardians are to carry out civil juristic acts and protect the personal rights, property rights and other legitimate rights and interests of the ward.
The rights of guardians arising from the lawful performance of guardianship duties are protected by law.
Where guardians do not perform guardianship duties or infringe upon the lawful rights and interests of their wards, they shall bear legal responsibility.
Where due to emergencies such as emergencies, guardians are temporarily unable to perform guardianship duties, and the ward's life is in a state of no one to take care of them, the residents' committee, villagers' committee, or civil affairs department for the ward's domicile shall arrange necessary temporary living care measures for the ward.
It should be noted that the entrusted guardianship is only a temporary measure, and the legal guardian still has to bear the corresponding guardianship responsibilities. Although the parents have entrusted their sons to others, they are still legal guardians, and their parental guardianship responsibilities cannot be exempted by entrusting others to perform guardianship duties, and the parents shall bear civil liability and be responsible for compensating the victim for all losses.
The fault of the entrusted guardian shall be based on the negligence of the duty of supervision. The principle of "judging on a case-by-case basis" and the principle of "weighing interests" should be adhered to in the judgment of negligence in the performance of supervision obligations. Mr. Shi Shangkuan believes that the judgment of the duty of supervision "not only has the general duty of supervision been fulfilled, but also the supervision should have been necessary in the special circumstances of the harmful act, so that the responsibility for negligence can be exempted." ......In addition, the negligence of supervision shall be based on the time of the harmful act. That is, whether the person who is required to manage the person with good care at this time and fulfill his duty of supervision". (Shi Shangkuan, "General Theory of the Law of Obligations", China University of Political Science and Law Press, 2000, pp. 184-185.) Because the specific circumstances of the ward's "time of committing the harmful act" are very different, it is difficult to make general provisions on the supervision obligations of the entrusted guardian, but can only be comprehensively judged based on the circumstances of each case, taking into account factors such as the victim's personal and property rights and interests, the ward's own characteristics (age, personality, past performance), space for healthy and free development, the performance of educational obligations, and the cost of performing the entrusted guardian. At the same time, when considering the responsibilities of the trustee, the scope of the trustee's responsibilities should also be determined based on factors such as whether the entrustment contract is paid or not.