When the guardian infringes the interests of the ward, how to hold the guardian accountable?
Author | Liu Yanhua, senior partner of equity at
, and Cao Chenfan, a full-time lawyer
introduction
The author is often asked during consultations that the personal and property of minors and persons with limited/incapacity for civil conduct are often controlled by their guardians, and guardians may infringe on the interests of the ward when exercising the rights of legal representatives. If the guardian infringes the rights and interests of the ward, how should it be remedied?
Especially at the moment when the intended guardianship is a new thing, people pay more attention to whether the intended guardians can safeguard the interests of the ward, so that the property rights and personal rights of the ward can be reasonably and fully protected.
The Civil Code of our country only stipulates that "guardians who do not perform guardianship duties or infringe on the legitimate rights and interests of the ward shall bear legal responsibility." However, the specific legislation on how to file a lawsuit, who will be the subject of the lawsuit, who will supervise the guardian, etc., has not been explained in detail. The author will analyze the practical operation of guardianship disputes based on some practical cases and the author's case handling experience.
Case
Case 1: Wu 1, Wu 2 custody dispute
Trial court: Intermediate People's Court of Wuhu City, Anhui Province
Case number: (2020) Anhui 02 Minjian No. 372
Date of Judgment: 2020.04.08
Subject matter: Guardianship dispute
1. Basic case
Wu Mou2 and Tang are husband and wife, and had two sons after marriage, the eldest son Wu Mou1 and the second son Wu 3. Since January 2016, Tang has been hospitalized in a hospital for a long time due to various diseases. In April 2016, upon the application of Wu Mou2, the court of first instance declared Tang to be incapable of civil conduct and appointed Wu Mou2 as Tang's guardian.
When appointing a guardian, Tang has a deposit of about 1.30 million yuan under his name, a monthly retirement salary of more than 6,000 yuan, and Wu's monthly retirement salary of more than 5,000 yuan. The common property of the husband and wife has a set of A real estate and a facade of B.
In early 2018, Wu Mou2 sold the A house for 500,000 yuan. In May 2018, Wu Mou2 informed Wu Mou1 that he would sell the B facade and informed him that he could participate in the bidding. Wu Mou2 admitted that there are still more than 1.3 million yuan in the joint deposit of the husband and wife, which is kept in his place.
2. Focus of controversy
The court summarized the main points of contention between the parties as follows:
1. Wu Mou1's qualification as a litigation subject.
In this case, whether Wu Mou1 had the qualifications to be the subject of litigation, the court held that Wu Mou1 was a married child of Tang and Wu Mou2, and Wu Mou2's handling of the property belonging to Tang in the common property of the couple, especially in the case of Tang's loss of civil capacity, directly affected his future right to inherit Tang's property. Therefore, Wu Mou1, as the heir, is an interested party in this case.
According to the first paragraph of Article 35 of the General Principles of Civil Law (now Article 35 of the Civil Code), guardians shall perform guardianship duties in accordance with the principle that is most beneficial to the ward, and shall not dispose of the ward's property except for the interests of the ward. If the guardian fails to perform guardianship duties or infringes on the legitimate rights and interests of the ward, he shall bear legal responsibility.
Who has the right to exercise supervision over the guardian's behavior? According to the provisions of the General Principles and General Principles of the Civil Law, the interested party has the right to exercise it. Wu Mou1 is the son of Wu Mou2 and Tang Mou2, and is an interested party. Therefore, Wu Mou1 is qualified as a litigation subject.
2. Wu Mou1's definition of the nature of the "claim" in this case.
Regarding the definition of the nature of Wu Mou1's "claim" in this case, the court held that:
Wu Mou1's lawsuit claim is attributed to the lawsuit of confirmation and the lawsuit of payment, which is a compound lawsuit. The lawsuit of confirmation must first confirm that Wu Mou2 has infringed. Only by committing the infringement can Wu Mou1 have the right to ask Wu Mou1 to stop the infringement. In this case, Wu Mou2 only notified Wu Mou1 that he wanted to dispose of the facade B of the husband and wife's common property, but had not yet implemented the disposal act, so the rights of Wu Mou1 had not yet been infringed. Therefore, Wu Mou1's claim for Wu Mou2 to stop the infringement and not to sell the facade B of the common property of Wu Mou2 and Tang Mou2 cannot be established.
3. Regarding whether the guardian Wu Mou2 infringes the property rights of the ward Tang Lihong.
Regarding the question of whether the guardian Wu 2 infringed on the property rights of the ward Tang Lihong, the court held that, according to the law, the guardian infringed on the legitimate rights and interests of the ward, and other persons or units with guardianship qualifications may require the guardian to bear civil liability. The premise of the law setting up such proceedings is that the guardian has committed acts that infringe the legitimate rights and interests of the ward.
Although Wu Mou2 expressed his intention to sell the real estate jointly owned by both husband and wife, the sale has not been carried out, and the damage to Tang's property rights and interests has not yet occurred. Wu Mou1 requires Wu Mou2 to bear the civil liability caused by the tort based on the fact that it has not yet occurred, which has no basis in law.
Finally, the court ruled to dismiss Wu's claim.
Case 2: Wu 1, Wu 2 custody dispute
Trial court: Beijing Second Intermediate People's Court
Case number: (2020) Beijing 02 Minjian No. 9171
Date of Judgment: 2020.10.29
Subject matter: Guardianship dispute
1. Basic case
Wu 1 and Wu 2 are sisters, and the outsider Zhang 1 is the mother of Wu 1 and Wu 2.
In September 2005, Zhang Mou1 was hospitalized for many years due to an accident during medical examination. In 2006, Wu Mou1 and Wu Mou2 jointly sued the hospital as Zhang Mou1's legal representative for compensation. In 2012, the two parties reached a mediation agreement, and the hospital agreed to compensate Zhang Mou1 for various losses at one time, totaling 1.25 million yuan, and guarantee other welfare benefits.
The account flow under Zhang Mou1 shows that Wu Mou2 has withdrawn tens of thousands to hundreds of thousands of times. Wu Mou1 claims that the above funds were diverted by Wu Mou2 for his own use. Wu Mou2 agrees that the funds are drawn by himself, but they are all used for Zhang Mou1's treatment, life and litigation expenses.
On December 7, 2018, the court declared Zhang Mou1 a person without capacity for civil conduct. On January 9, 2019, the court determined that Wu Mou2 was Zhang Mou1's guardian.
Wu 1 requests Wu 2 to stop the infringement of Zhang 1's property, make public accounts, properly keep Zhang 1's property, and dedicate special funds; and return the encroached property 1.50 million yuan.
2. The court's opinion
The court holds that a party has the responsibility to provide evidence to prove the facts on which his claim is based or to refute the facts on which the other party's claim is based. If there is no evidence or the evidence is insufficient to prove the party's factual claim, the party who bears the burden of proof shall bear the adverse consequences.
In this case, Wu Mou1 claims that Wu Mou2 made large withdrawals from Zhang Mou1's bank account several times from 2006 to 2008 without specifying a reasonable use, but the above withdrawals all took place during Zhang Mou1's medical dispute litigation. According to the court's mediation statement, the actual expenses claimed by Zhang Mou1 in the first instance were as high as more than 700,000 ********ch higher than the amount withdrawn by Wu Mou2. Wu Mou1 participated in the lawsuit as Zhang Mou1's legal representative and should have known Zhang Mou1's expenses. Therefore, Wu Mou1 claimed that Wu Mou2 withdrew Zhang Mou1's deposit for his own benefit, but the basis was insufficient and the court did not accept it.
This case is a custody dispute, and guardianship is the right to supervise and protect the personal rights and property rights of the ward. After litigation, the effective documents have determined that Wu Mou2 is the legal guardian of Zhang Mou1, and the guardianship relationship has been in a continuous state. Therefore, the corresponding right to control the property enjoyed by Wu Mou2 to Zhang Mou1 is protected by law.
If Wu Mou1 has sufficient evidence to prove that Wu Mou2 has abused the guardianship and illegally occupied Zhang Mou1's property for his own personal gain, and requires Zhang Mou1's accounts to be made public, Zhang Mou1's property to be properly safeguarded, and special funds to be dedicated, he can claim his rights separately by changing the guardianship relationship.
The court rejected Wu's claim.
II. Key points of practical operation
The situation in a case that our team recently approached was as follows. The ward became a person with limited capacity for civil conduct due to family conflicts and physical injuries. The ward divorced his husband due to family disputes. After the divorce, the ward's parents transferred and consumed nearly 10 million yuan of assets belonging to the guardian without authorization.
As the child of the ward, the guardian should inform the ward of his expenses, but the guardian refuses. The child of the ward hopes to protect his mother's property. We believe that the petition of the child of the ward can be analyzed from the following aspects.
1. Determination of the cause of action
According to the section "Guardianship Disputes" in the second edition of the "Guidelines on the Application of Key Points and Claims of Civil Causes of the Supreme People's Court" in August 2020, a guardianship dispute refers to a guardian who fails to perform guardianship duties or infringes on the legitimate rights and interests of the ward. If other persons or units with guardianship qualifications as stipulated in Articles 27, 28, 31, and 32 of the Civil Code sue the people's court and require the guardian to bear civil liability, a dispute will be formed.
Guardianship disputes include disputes arising from the infringement of guardianship and the negligence of guardians in exercising guardianship.
Therefore, in combination with the above two cases, the cause of disputes caused by guardians infringing on the ward's property and neglecting formal guardianship is usually "guardianship disputes". For example, in case 2, when the litigation request in the guardianship dispute is not supported after two trials, and the situation of infringing the ward is found later, the rights can be claimed separately by changing the guardianship relationship, etc., to protect the rights and interests of the ward.
2. Determination of the subject of litigation and supervision
Articles 34 and 35 of the Civil Code stipulate the duties of guardians, and guardians who fail to perform their duties shall bear legal responsibility. However, the current law does not clearly stipulate who can file a lawsuit and who can supervise the behavior of guardians?
Referring to case 1, according to the provisions of the current law, it is inferred that the interested party can act as the subject of litigation or as the subject of supervision to supervise the behavior of the guardian. In case 1, the son, as the future heir of the father, the reduction of the father's property will directly affect the amount of his future inheritance property. Therefore, the son is the interested party in this case and is a qualified litigation subject.
In practice, the interested parties usually include close relatives in civil law, and they need to have a relatively close relationship and the reason for the application.
3. Burden of proof
This case is a lawsuit in which an interested party pursues the guardian for neglecting to exercise guardianship. The interested party shall prove that the guardian has infringed on the person, property or other rights and interests of the ward. However, in practice, since the ward is cared for and supervised by the guardian, it is difficult for outsiders to obtain evidence and records related to the ward. In many cases, the interested party cannot obtain evidence to prove the fact of the guardian's infringement.
Therefore, in practice, when the interested party has prima facie evidence to prove that the guardian has infringed on the interests of the ward, the court should reasonably allocate the director of evidence to ultimately achieve the purpose of protecting the interests of the ward.
III. Practical progress and development
1. The courts
People's Court of Jiading District, Shanghai - the first case in the country of sentencing a guardian's performance report
Ah Ying, Ah Hui and Ah Fang are all children of the ward
When Ah Hui managed the ward's property before, he had the behavior of embezzling the savings and demolition interests of the elderly, and there were also deficiencies in public property management, and he also neglected to send the elderly to treatment in time;
In response to the embezzlement of property and the lack of public information reported by the applicants, the Shanghai Jiading District People's Court took the following innovative measures in this case:
After finding out that the ward's property had been managed by his son, Ahui, the undertaker asked Ahui to report the ward's property list to the court.
Guide each applicant to agree to accept the supervision of other close relatives: make income and expenditure accounts and publicize them regularly, and make publicity and supervision an obligation determined by the main text of the judgment.
The judgment designates A Hui as the guardian; the guardian A Hui shall announce to A Ying and A Fang the property management and personal management of the ward in the previous month before the 5th of each month.
This case provides a replicable exploration experience for the trial of guardianship disputes by clarifying three innovations: the principle that is most conducive to the ward, the applicant's report of property, and the judicial determination path of the guardian's performance report in the form of a judgment.
2. Procuratorate
The Shanghai Putuo District Procuratorate and the Civil Affairs Department have explored the working mechanism of conditional non-revocation of guardianship and supervision and inspection of guardianship; the Fuzhou People's Procuratorate has issued a "supervision and supervision order" to supervise and supervise derelict guardians; the Shanghai Municipal Procuratorate has explored the scope and process of parental education in the "Guiding Opinions on Regulating Parental Education (Trial) ", and urged parents or other guardians to perform their legal duties by taking educational and disciplinary measures.
On December 9, 2021, the Shanghai Hongkou District Procuratorate issued the "Opinions on Strengthening the Supervision of Minors in Hongkou District" (hereinafter referred to as the "Opinions"), which investigates and evaluates the guardianship status of minors, and stipulates corresponding supporting guarantee mechanisms. If it is found that the relevant unit or guardianship supervisor has not fulfilled the duties of education, protection, and supervision of minors, the people's procuratorate may make written recommendations to it; the people's procuratorate may also, upon the application of the guardianship supervisor or the relevant unit, decide to take educational and disciplinary measures against the guardian who has defaulted on his duty, and urge him to perform his guardianship duties.
3. Notary Office
Regarding the notary of intended guardianship, the notary office recommends confirming the way in which the guardianship conditions are realized, asking whether the scope of guardianship involves property or only part of the person; asking whether the parties want to establish a guardianship supervisor, in view of the fact that legal guardians violate the legal rights and interests of the ward in practice It is not uncommon, and the guardians established by the intended guardianship agreement are more likely to fail to perform their guardianship duties correctly after they lack the bond of "blood" relationship.
Therefore, it is recommended that a guardianship supervisor be established in the intended guardianship agreement, otherwise the authority of the guardian will be too large.
IV. Lawyer's advice
The essence of the guardianship system is to protect the interests of the ward from infringement, but in reality, whether the guardian can really make people doubt whether the guardian has forgotten his identity in front of the interests, or whether the guardian's so-called protection of the ward's interests may actually be for the interests of a certain person.
In the case we represented, the intended custodian (the ward's sister) transferred about two million yuan to the ward's mother and brother's account during the ward's stay in the intensive care unit, claiming that it was a previous loan, which made it difficult for other close relatives of the ward to accept, leading to family disputes.
Therefore, on the issue of guardians, we have to think carefully. We believe that the following two aspects deserve special attention.
1. Identify supervisors
Whether in legal guardianship or intentional guardianship, the establishment of a guardianship supervisor should be considered to limit the rights of the guardian and avoid infringement of the rights and interests of the ward. In legal guardianship, in the special procedure of appointing a guardian, apply to the court to determine the supervisor, enjoy the right to supervise, and require the guardian to regularly disclose financial reports and information.
Intentional guardianship lacks the bond of "blood" relationship, and it is more necessary to set up a supervisor to supervise the performance of guardians' duties.
2. Pay attention to data collection
When legal guardianship and intended guardianship do not establish the role of supervisor, if the ward infringes, only the interested party can protect the rights and interests of the ward. And often the ward is usually cared for and supervised by the guardian, and it is difficult to obtain relevant evidence and records of infringement. Therefore, the interested party pays attention to the acquisition and preservation of information in daily life and visits.
conclusion
Although the current system of guardianship supervisors is lacking, we can see that the judicial community has been actively exploring the feasibility of establishing supervisors and taking effective supervision measures, so that the rights and interests of the ward can be fully and properly protected as soon as possible.
Team Profile
Yinghe family lawyer team
Divorce Disputes | Inheritance Disputes
Family Equity | Property Agreement
Wealth Inheritance | Family Trust
Foreign marriage and family
The Yinghe family lawyer team focuses on legal services in the field of marriage and family affairs, specializing in litigation and non-litigation arrangements for marriage and family disputes (such as divorce, inheritance, cohabitation, separation of property, children and property relations after divorce, etc.); specializing in entrepreneurs' equity handling and company control arrangements in marriage and family disputes; specializing in entrepreneur family legal counsel, marital crisis response, family wealth inheritance, and foreign-related marriage and family affairs.
Liu Yanhua, Lawyer
Senior Equity Partner of
Member, Marriage and Family Law Professional Committee, Guangdong Lawyers Association
Member, Marriage and Family Law Professional Committee, Shenzhen Lawyers Association
Arbitrator of Wuhan Arbitration Commission (Wuhan International Arbitration Center)
Supervisor, Shenzhen Living Will Promotion Association
Volunteer lawyer for the "New Rain Project" and "Anti-Domestic Violence" projects of Vader Volunteer Center
Special guest of the Guangdong Provincial High Court column "Seeing the Law in the Bay Area"
Invited Lecturer, No Lawsuit Research Institute
Shenzhen Foreign Lawyers New Talent Pool Lawyers
School of Economics and Trade, Guangdong University of Foreign Studies
Lawyer Liu Yanhua has been practicing for more than ten years and has long been focusing on the field of marriage and family affairs. She has extensive experience in divorce litigation, inheritance litigation, foreign-related marriage inheritance, pre-marital and intra-marital agreements, marriage crisis response entrepreneurs' family legal counsel, and family wealth inheritance arrangements. Special guest on the TV program "Bay Area Watching the Law" of the Higher People's Court of Guangdong Province, and special guest on the TV program "Bill Tracking" of Guangdong Zhujiang Channel.
Editor-in-chief of the professional book "88 Lectures to Help You Solve Marriage and Family Law Issues" and one of the editors of "Extraordinary Family Affairs".
Cao Chenfan, lawyer
Attorney of
Lawyer Cao Chenfan has 8 years of experience in corporate legal work, specializing in handling cases in the cross-field of family affairs and family equity. He is a compound lawyer in the field of family affairs and companies. He focuses on case handling in the field of family affairs, analysis of difficult and complex cases, and research on cutting-edge legal issues. He is good at professional analysis of hot events and practical cases. Deputy editor of the professional book "88 Lectures to Help You Solve Marriage and Family Legal Issues".