Abstract
Huang Yi provides an account of empirical research about the practice of guardianship and legal capacity to better understand the challenges of implementing Article 12—Equal recognition before the law, of the United Nations Convention on the Rights of Persons with Disabilities (CRPD 2006) in China. She identifies and examines key cultural issues that affected the implementation of Article 12 in China. Yi provides an account of both the systemic issues that affect the way in which persons with disabilities are constituted within the ‘culture of the law’ in China, and the moral and relationship issues to which they are subject. Yi concludes by analysing key cultural issues that need to be taken into account in the implementation process of Article 12 CRPD in China.
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Notes
- 1.
Article 12 (1): States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law (CRPD 2006, Art. 12[1]).
- 2.
Article 12 (2): States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (CRPD 2006, Art. 12[2]).
- 3.
Article 12(3): States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity (CRPD 2006, Art. 12[3]).
- 4.
Article 12(4): States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests (CRPD 2006, Art. 12[4]).
- 5.
Article 12(5): Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property (CRPD 2006, Art. 12[5]).
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Yi, H. (2020). The ‘Transposition’ of Article 12 of the CRPD in China and Its Potential Impact on Chinese Legal Capacity Law and Culture. In: Kakoullis, E.J., Johnson, K. (eds) Recognising Human Rights in Different Cultural Contexts. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-15-0786-1_10
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