我国老年监护制度的立法突破及相关问题

Legislative Breakthrough and Related Issues of Elderly Guardianship System

《中华人民共和国老年人权益保障法》第26条：具备完全民事行为能力的老年人，可以在近亲属或者其他与自己关系密切、愿意承担监护责任的个人、组织中协商确定自己的监护人。监护人在老年人丧失或者部分丧失民事行为能力时，依法承担监护责任。老年人未事先确定监护人的，其丧失或者部分丧失民事行为能力时，依照有关法律的规定确定监护人。

In the backwash of the world adult guardianship system reform, China has amended the Law on the Protection of the Rights and Interests of the Elderly and set up Article 26 which provides the guardianship by conduct and the designated guardianship for the elderly, which has made the breakthrough of the reform in the legislation of adult guardianship system and replenished the types of the persons under guardianship. Thus has established a new system for guardianship by conduct and expanded the applicative scope of the designated guardianship. It has also expanded the regulatory scope of the liability of guardian stipulated by Article 32 of the Tort Law of P. R. C and the scope of persons without civil procedure competency. So it is of great value both in legislation and society. As the provisions are still simple, some related issues will be caused by the legislation of the eld- erly guardianship system. For instance, the guardianship by conduct for the elderly has been set up without providing the procedure of making agreement, the necessary supervision system, and the reg- istration system for it. Besides, measures and standards to determine whether an elderly has complete- ly or partially lost his/her civil competency have not by conduct should be expanded to all kinds of adult been established. Meanwhile, the guardianship guardianship. And a comprehensive supervision system for guardianship has not been established neither. All of these issues need supplementary regu- lations to make proper adjustment.