意定监护不确定性的控制机制

Control Mechanism of Uncertainty in Voluntary Guardianship

摘要: 从法律的视角看，不签订合同相信他人无异于赌博，不同的是其以“发生客观不确定的事件”这一动作作为自身意思表示唯一依据的约定。作为私法自治手段的意定监护具有个别规范品格，为当事人的意思自治提供积极行为规范。即使是意定监护也有其不确定性，构建成年意定监护的控制机制则显得尤为重要，明确意定监护的优先排序，尊重被监护人的真实意愿，将信托制度与监护制度并用，扩大人民对意定监护的了解范围，以期升华人们约定俗成的习惯，提升地方性法规的司法效力，并保障司法裁判有据且有效。

Abstract: From the legal point of view, trusting someone without a contract is the same as gambling, except that it takes the action of “Occurrence of an objectively uncertain event” as the sole basis for its own declaration of agreement. As a means of autonomy in private law, voluntary guardianship has the character of individual norms, which provides positive behavior regulations for the party autonomy. Even guardianship by conduct has its uncertainties, it is particularly important to establish a control mechanism for adult voluntary guardianship. The priority of voluntary guardianship should be clearly defined, the real will of the wards should be respected, and the trust system and guardianship system should be combined to expand people’s understanding of voluntary guardianship, so as to sublimate people’s conventional habits, enhance the judicial effectiveness of the local laws and regulations, and ensure that the judicial decisions are well-founded and effective.