Shelter or Capital? Reconstructing the “Best Interests of the Ward” in Chinese Property Guardianship

Abstract

Abstract The financialisation of household wealth has sharpened a tension between family collectivism and individual property rights in China, where Article 35 of the Civil Code permits a guardian to dispose of a ward’s property only for the ward’s benefit while the indigenous Tongju Gongcai tradition treats the household, rather than the individual, as the property-holding unit. Drawing on an original dataset of 58 contested disputes, this article shows that courts divide almost evenly on facts the standard cannot itself distinguish, but not randomly. Outcomes turn on antecedent features the statute does not name: the character of the property, whether the ward’s sole home is at stake, and the destination of the proceeds. The divergence reflects a collision of three institutional logics rather than doctrinal disorder. The article proposes a modest fiduciary floor anchored in the ward’s subsistence in shelter, while preserving space for household-property understandings above that floor.