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Regarding Guardianship, What Does the PRC Civil Code Say?
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RPC Civil Code: Chapter 4 Portrait Rights
Article 27 Parents are guardians of their minor children.If the Parents of a minor are dead or have no competence to be guardians, one of the following persons who have the competence to be guardians shall act as the guardian in the listed sequence:(I)Paternal or maternal grandparents;(II) Elder brothers or sisters; or(III) Any other individual or organization that is willing to act as the guardian, provided that it is approved by the neighborhood committee, the villagers' committee or the authorities of civil affairs of the place of the minor's domicile.
Article 28 One of the following persons having guardianship competence shall act in the listed sequence as the guardian for an adult without or with limited capacity for civil conduct:(I)Spouse;(II) Parents or children;(III) Any other near relative; or(IV) Any other individual or organization that is willing to act as the guardian, provided that it is approved by the neighborhood committee, the villagers' committee or the authorities of civil affairs in the place of the ward's domicile.
Article 29 The Parents of a ward may appoint a guardian in their wills if they are the ward's guardians.Article 30 Persons legally qualified for guardianship may enter into an agreement to determine a guardian. Where a guardian is to be determined by agreement, the true will of the ward shall be respected.
Article 31 If there are disputes on the determination of a guardian, the neighborhood committee, the villagers' committee or the authorities of civil affairs in the place of the ward's domicile shall appoint a guardian; if the parties do not agree with the appointment, they may apply to a people's court for appointing a guardian. The parties may also directly apply to a people's court for appointing a guardian.Before a guardian is appointed in accordance with the provisions of Paragraph 1 of this Article, if the personal rights, property rights and other legitimate rights and interests of the ward are not subject to any protection, the neighborhood committee, villagers' committee, relevant organizations specified by law or the authorities of civil affairs in the place of the ward's domicile shall act as the guardian temporarily.The guardian, once appointed, shall not be changed without authorization; unauthorized change does not exempt the designated guardian from liability.
Article 32 Where there is no person legally qualified to be a guardian, either the authorities of civil affairs or the neighborhood committee or villagers' committee in the place of the ward's domicile which is qualified to fulfill the guardianship responsibility may act as the guardian.Article 33 For an adult with full capacity for civil conduct, he or she may negotiate with his or her close relatives or other individuals or organizations which are willing to act as the guardian in advance to determine his or her guardian in writing; if he or she loses or partially loses the capacity for civil conduct, such guardian shall fulfill the guardianship responsibility.
Article 34 A guardian is in charge of representing the ward in his or her performance of civil juristic acts and protecting the ward's personal rights, property rights and other legitimate rights and interests.A guardian who fails to fulfill the guardianship responsibility or infringes upon the legitimate rights and interests of the ward shall bear legal liability.
Article 35 A guardian shall, according to the principle of benefiting the ward to the largest extent, fulfill the guardianship responsibility. A guardian shall not dispose of the property of his or her ward unless it is to safeguard the ward's interests.The guardian of a minor, while fulfilling the guardianship responsibility, shall respect the ward's true will when making the decision related to the ward's interests according to the ward's age and intelligence status.The guardian of an adult, while fulfilling the guardianship responsibility, shall respect the ward's true will to the largest extent, and safeguard and assist the ward in performing the civil juristic acts that are compatible with the ward's intelligence and mental health. The guardian shall not interfere with the affairs which the ward is able to handle independently.
Article 36 In the event that a guardian is under any of the following circumstances, the people's court may, based on the application of the individual or organization concerned, disqualify the guardian, arrange necessary measures for temporary guardianship, and appoint a guardian according to the law under the principle of benefiting the ward to the largest extent:(I)Performing acts that seriously damage the physical and mental health of the ward;(II) Delaying in fulfilling the guardianship responsibility, or being unable to fulfill the guardianship responsibility and refusing to delegate part or all of the guardianship responsibility to others, which causes the ward to be in distress; and(III) Performing other acts that seriously infringe upon the legitimate rights and interests of the ward.
Article 37 Parents, children and spouses who bear the upbringing payment, alimony payment or maintenance payment for the ward according to the law shall continue to fulfil their obligation in regard to such payment after they have been disqualified by a people's court as guardian.Article 38 Where the Parents or offspring of a ward show true repentance after being disqualified from guardianship by a people's court, the people's court may, on the premise of respecting the ward's true will, enable them to regain guardianship upon their application as the case may be, except for those who commit an intentional crime against the ward; the guardian relationship between the guardian appointed by the people's court and the ward shall be terminated simultaneously.
Article 39 Under any of the following circumstances, the guardian relationship shall be terminated:(I)Where the ward gains or regains the full capacity for civil conduct;(II) The guardian loses the competence to be a guardian;(III) Either the ward or the guardian dies; or(IV) Other circumstances where the people's court determines that the guardian relationship shall be terminated.Where the guardian relationship is terminated and the ward still needs guardianship, another guardian shall be determined according to the law.
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