In reality, the guardian of the person without civil capacity and the person with limited capacity can be changed, and then the transfer of guardianship will follow. So what are the responsibilities of the parties after the transfer of guardianship? And what is the way of guardianship transfer? Please read below for more information.
I. What are the responsibilities of the parties involved in the transfer of guardianship
The responsibility of the party under the transfer of guardianship refers to the legal consequences that the guardian should bear if he fails to perform his guardianship duty or improperly perform his guardianship duty. Guardianship responsibility and guardianship responsibility are two different concepts, which are interrelated and different from each other. The so-called guardianship duty is also called guardianship duty or guardianship affairs, which refers to the guardian's obligations to the person or property of the guardian. The so-called guardianship responsibility refers to the civil liability that guardians should bear when they fail to perform their guardianship duties.
Article 12 of the Law of the People's Republic of China on the Protection of Minors at the End of the People's Republic of China stipulates that parents or other guardians who fail to perform their guardianship duties or infringe upon the legitimate rights and interests of minors under guardianship shall be liable according to law. If the parents or other guardians have acts listed in the preceding paragraph and have not been changed through education, the people's court may revoke the qualification of their guardians on the basis of the application of the relevant personnel or units; and in accordance with the provisions of Article 16 of the General Principles of Civil Law, another guardian shall be determined.
The parties under the transfer of guardianship include guardians, guardians and trustees, and other persons who have obtained temporary guardianship according to law. Different parties bear different responsibilities in different guardianship relationships, enjoy corresponding rights and undertake corresponding obligations.
China's General Principles of Civil Law and related laws do not specifically stipulate the form of guardianship transfer. Combining with legal principles and relevant legal provisions, the forms of guardianship transfer can be divided into two categories: one is the transfer of guardianship which does not require another agreement or another entrustment according to law or custom; the other is the transfer of guardianship which can take place only on the basis of special entrustment.
(1) Transfer of custody according to law or custom.
This kind of situation is mainly based on the "public" matters (or the intervention of Japanese public power) resulting in the transfer of guardianship, or the mandatory transfer of day guardianship. The compulsory transfer of guardianship is not stipulated in our law, but it is an objective phenomenon in practice. For example, the compulsory reeducation through labour for minors actually transforms the original guardianship of minors into the guardianship of state organs. Of course, some people also believe that this situation does not constitute a transfer of guardianship, the state organs bear only a management responsibility. If minors are forced to reeducate through labor, how can their guardians perform their guardianship duties? Under the legal principle that no blank space is allowed for the guardianship of minors, it can only be presumed that the state organs should assume the guardianship duties of the minors in addition to their management responsibilities at this time.
In this case, the legal provisions are the fundamental elements leading to the transfer of guardianship. When the exercise of guardianship proceeds to the conditions prescribed by law, the guardianship will be transferred immediately. For example, the guardian is adopted by others, the children live with their father or mother after their parents divorce, and the guardian is adopted and brought up according to law.
2. Customarily, the transfer of guardianship can take place without special entrustment.
This situation is mainly aimed at institutions with "public welfare" nature, such as schools, kindergartens, nurseries, hospitals and other public welfare institutions. According to the nature of guardianship, the guardian is the legal agent of the guardian, who performs the duty of protecting and taking care of the person or property of the guardian. It also includes safeguarding their rights to education, admission and medical treatment. The protection of this right can be exercised not only by guardians themselves, but also by schools, kindergartens, hospitals and other institutions to achieve the purpose of safeguarding the interests of the guardians. In today's society, limited to the impact of various factors and the specific situation of guardians, it is obviously not practical to rely solely on the ability of guardians to meet the rights of guardians in learning, medical treatment and other aspects. Therefore, the guardian's education, medical treatment and other matters entrusted to specialized agencies to undertake, it has become an important civil right of the guardian. And this right has gone beyond the scope of the adjustment of "private law", and has become part of the right of public law. For example, the Law on Compulsory Education and the Law on the Protection of Minors stipulate that minors have the right to education, and guardians and schools should ensure that minors enjoy this right. Therefore, the guardian will send the guardian to school and hospital for medical treatment, not only to fulfill his guardianship duties, but also to fulfill the legal obligations of "public law". In this case, the guardian's guardianship responsibility is transferred to these institutions without special entrustment, which are responsible for guardianship at a specific time and in a specific area. Because this kind of right stipulation based on "public law" has already formed a de facto principal relationship in "private law", although it has "non-standardized characteristics". Moreover, the guardianship responsibility of schools has been confirmed by judicial practice, but it is noteworthy that private schools, including boarding schools, have both profit-making purposes. Some of their guardianship responsibilities are established on the basis of the entrustment of guardians.
3. Guardianship duties of welfare institutions.
Social welfare institutions refer to those who specialize in the protection and care of specific objects.