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How to apply for guardian determination

2018-03-15 17:36:34

Application for guardian

Tools/Materials
1

General principles of civil law

2

Civil procedure law

Methods/Steps
1

Application for determination of guardian means that if there is a dispute over the guardianship of a minor, person with no capacity for civil conduct, or person with limited capacity for civil conduct, the guardian shall be appointed by the resident or villagers' self-governing organization in the place where the guardian is located. If the resident or villagers' self-governing organization is not satisfied with the designation, it may apply to the people's court for determination of guardian.

2

According to the provisions of Article 10 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China, cases of refusal to accept the appointment or change of guardianship shall be under the jurisdiction of the people's court of the place where the guardianship is domicile.

3

[Application of law] The legal basis for handling cases of application for determination of guardian is mainly Article 16 and Article 17 of the General Principles of Civil Law, and Article 10-23 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial Implementation).

4

[Issues that should be noted in determining the cause of the case 1 The cause of the case is the third level. The application for determining the guardian must meet the following conditions: (1) The appointment must be made by the relevant organization. For minors, the unit to which the parents belong or the residents' committee or villagers' committee of the minor's place of residence shall first be made among the close relatives; for mental patients, the unit to which the mental patient belongs or the residents' committee or villagers' committee of the place of his place of residence shall first be made among the close relatives. If a person refuses to accept the appointment, he or she shall file a suit with the people's court, and the people's court shall not accept the suit. (2) If a suit is filed with the People's court without the appointment, the people's court shall not accept the suit. (2) The court shall determine the order of appointment of a guardian in accordance with the provisions of subparagraphs (1)? (3) of Article 16, paragraph 2, or (1) ~(5) of Article 17, paragraph 1, of the General Principles of the Civil Law. (3) If the appointed party is not satisfied, it shall also file a suit with the people's court within 30 days after receiving the notice (written or oral) from the relevant organization regarding the appointment of guardianship. If the suit is delayed, it shall be treated as a change of guardianship. According to the provisions of Chapter 15 of the Civil Procedure Law, there is no requirement in the special Procedure to apply for the appointment of a guardian. However, according to the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial Implementation), Article 19, paragraph 1: "If the appointed person does not accept the appointment and brings a lawsuit, the People's Court shall make a judgment to maintain or revoke the appointment of a guardian in accordance with the provisions of Article 14 of these Opinions. If the judgment is to revoke the original appointment, another guardian may be appointed at the same time. Such cases shall be tried in accordance with the special procedures provided for in the Civil Procedure Law (trial implementation)." According to Article 20 of the Opinion, if the guardian fails to perform his guardianship duties and requests a change in the guardianship relationship, the special procedures shall be reviewed in accordance with the special procedures. Therefore, the provisions of the special procedures chapter of the Civil Procedure Law shall apply to the case of determining the guardian. In order to distinguish between the "Application for Appointment of Guardian case" and the appointment of guardians by relevant organizations, the "application for Appointment of guardian case" in the Provisions (Trial) is changed to "Application for appointment of guardian", which is more in line with the provisions of Article 14 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial Implementation). When the people's court appoints a guardian, it may regard the provisions of subparagraphs (1)? (3) of Article 16, paragraph 2, or subparagraphs (1) ~(5) of Article 17, paragraph 1, of the General Principles of the Civil Law as the order in which a guardian is appointed. If the person eligible for guardianship in the first order has no capacity for guardianship or is obviously unfavorable to the ward, the people's court may, in accordance with the principle of being favorable to the ward, choose the person eligible for guardianship in the second order from the person eligible for guardianship. If the ward has the ability to identify the person, the ward shall, as the case may be, seek the ward's opinion.

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