Legislative Construction of the Guardianship Supervision System in China

By Zhu Guangxin, a research fellow and the deputy head of the Civil Law Department of CASS Law Institute


Abstract: Guardianship is a process of continuously educating, caring for, and protecting a person without or with limited civil capacity over a long period of time. Although the choice of guardians is extremely important, the issue of how to supervise and guide the guardians to ensure that they perform their duties with due diligence should also not be ignored. With respect to the latter, many countries, including France, Germany and Japan, have established in their civil codes a guardianship supervision system under which the court and the guardianship supervisor each performs its or his own functions.In China, the General Provisions of the Civil Law inherit the guardianship system from the General Principles of the Civil Law, which contain no provision on guardianship supervision, but only provide for the disqualification of guardians who seriously violate the rights and interests of the persons under their guardianship. The guardianship regulatory system with statutory guardianship as its backbone established by the General Provisions of the Civil Law lacksprovisions on such matters as remuneration for and implementation costs of guardianship, resignation of the guardian, and punishment for improper guardianship. As a result, special demands have been raised on the regulatory structure of guardianship supervision. In the construction of the guardianship supervision system, a distinction should be made between parents as guardians and other individuals or organizations as guardians.In the latter case, a double guardianship supervision mechanism consisting of the general supervision by the court and daily supervision by guardianship supervisors should be established.


Keywords: guardianship; parental right; statutory guardianship; appointed guardianship; guardianship supervision; guardianship supervisor


This paper is published in Journal of Suchow University (Law Edition) 1 (2020), pp. 1-15.