한국 법무부의 성년후견제도에 관한 민법개정안 (Outlook of Legal Capacity System in Korean Civil Law - Focused on Adult Guardianship System)

서지정보

· 발행기관 : 한국재산법학회
· 수록지 정보 : 재산법연구 / 26권 / 3호 / 201 ~ 235페이지
· 저자명 : 백승흠

초록

In Feburary 2009, the Civil Law Revision Council decided to address the problem of guardianship for mentally incapacitated adults. As a result of the council's findings, it issued advance notice of partly new revised Civil Law to regulate guardianship (hereafter referred to as the Adult Guardianship Law Bill) on 18 September 2009. And the Ministry of Justice held a public hearing on the new bill on 31 September 2009. The overall aim was to allow mentally incapacitated adults to live as normally as possible, by amending the flaws in the existing law concerning their rights.


The Adult Guardianship Law Bill was introduced due to social needs arising from the following four trends.
First, Increasing numbers of people needing public assistance and health care.
Secondly, Changing attitudes to care of the elderly and mentally incapacitated.
Thirdly, Influence of the Power of Attorney law reforms in Europe, America and Japan.
Lastly, Maturing awareness of human rights in Korea.


The newly emerging concept of adult guardianship is embodied in amendments and an addition to the Civil Code, plus a new piece of legislation, the Voluntary Guardianship Contracts System.


The amendment to Civil Code Article 9 covers the mentally incapacitated(comprehensive guardianship), the amendment to Article 14 covers the partially mentally incapacitated(limited guardianship) and the amendment to Article 14-2(spescial order) covers anybody who wants temporary help service because of mental incapacity. The aim of these three amendments is to protect the rights of those who, due to mental incapacity, have insufficient capacity to do their own business. Together, they protect such peoples’ physical and property rights, the right to life and to freedom. The new addition to the Civil Code introduces a new system of ‘assistance’.
The Voluntary Guardianship Contracts System is a new system introducing the new concept of voluntary guardianship.
The decision to commence any comprehensive guardianship, limited guardianship or special order for an adult begins when an eligible applicant makes a statement of request to a family court.
Considering the principal's hope or intention is required to commence comprehensive guardianship and limited guardianship. The principal's capacity is judged by expert examination in the cases of comprehensive guardianship and limited guardianship. In the case of special order, it doesn't require to expert examination.
Qualified supervisors are appointed when the Family Court approves the request and judges the need of supervisor for comprehensive guardian or limited guardian.
In Korea, births, deaths, marriages, divorces and adoptions must be recorded in the family register, a legal record of each family, which is kept at the city hall of the area where the family resides. Previously, when an incapacitated or partially incapacitated person made a request for guardianship, it was necessary for the guardians to have this recorded in the family register. This had been criticized as insensitive to the feelings of the incapacitated or partially incapacitated and their relatives. There is, however, a need to make a record open to the public in order to protect both parties, therefore appointment of guardian is recorded in the family register but restricted to general public.
Voluntary guardianship is a new system of representation, which can be resorted to when a person is recognized to have insufficient judgement due to mental disorder. The voluntary guardianship contract must also be registered. The following paragraphs describe its scope and safeguards.


· The voluntary contract gives the mandated guardian power to represent the principal in all or part of his/her business affairs, daily life, convalescence care and property management.
· The contract comes into effect when a supervisor of the voluntary guardian is appointed.
· The Family Court appoints a supervisor of the voluntary guardian at the request of the principal, the principal’s spouse, relatives within the fourth degree of relationship or a mandated voluntary guardian, when a person lacks capacity due to mental disorder, providing that the voluntary guardianship contract has been registered.
· A mandated voluntary guardian or his/her spouse, a lineal relation or sibling of the principal cannot be the supervisor of a voluntary guardian.
· A voluntary guardian must respect the principal’s will and consider his/her mental/physical condition and personal life, when dealing with business affairs.
· The duty of the supervisor is to prevent the voluntary guardian from abusing the power of representation, by supervising the principal’s business affairs and giving periodical reports to the Family Court.


Our Bill consists of 4 guardianship system; comprehensive guardianship, limited guardianship, special order and voluntary guardianship contract. The guardianship system will serve well as a citadel for the incapacitated. Though the Bill grant authority to guardians to decide simple medical treatment, making important medical decisions such as euthanasia and informed consent would be the top priority for the Civil Law.
In addition, custody in the Bill, based on the Voluntary Guardianship Contracts System, gives a voluntary guardian no authority to make decisions concerning medical treatment accompanied by critical procedures, or medical decisions which terminate the principal’s life. Suggestions either to bring this area of decision-making under court supervision, or draft new legislation were also made. However, in my view much more debate is necessary on this topic.

영어초록

In Feburary 2009, the Civil Law Revision Council decided to address the problem of guardianship for mentally incapacitated adults. As a result of the council's findings, it issued advance notice of partly new revised Civil Law to regulate guardianship (hereafter referred to as the Adult Guardianship Law Bill) on 18 September 2009. And the Ministry of Justice held a public hearing on the new bill on 31 September 2009. The overall aim was to allow mentally incapacitated adults to live as normally as possible, by amending the flaws in the existing law concerning their rights.


The Adult Guardianship Law Bill was introduced due to social needs arising from the following four trends.
First, Increasing numbers of people needing public assistance and health care.
Secondly, Changing attitudes to care of the elderly and mentally incapacitated.
Thirdly, Influence of the Power of Attorney law reforms in Europe, America and Japan.
Lastly, Maturing awareness of human rights in Korea.


The newly emerging concept of adult guardianship is embodied in amendments and an addition to the Civil Code, plus a new piece of legislation, the Voluntary Guardianship Contracts System.


The amendment to Civil Code Article 9 covers the mentally incapacitated(comprehensive guardianship), the amendment to Article 14 covers the partially mentally incapacitated(limited guardianship) and the amendment to Article 14-2(spescial order) covers anybody who wants temporary help service because of mental incapacity. The aim of these three amendments is to protect the rights of those who, due to mental incapacity, have insufficient capacity to do their own business. Together, they protect such peoples’ physical and property rights, the right to life and to freedom. The new addition to the Civil Code introduces a new system of ‘assistance’.
The Voluntary Guardianship Contracts System is a new system introducing the new concept of voluntary guardianship.
The decision to commence any comprehensive guardianship, limited guardianship or special order for an adult begins when an eligible applicant makes a statement of request to a family court.
Considering the principal's hope or intention is required to commence comprehensive guardianship and limited guardianship. The principal's capacity is judged by expert examination in the cases of comprehensive guardianship and limited guardianship. In the case of special order, it doesn't require to expert examination.
Qualified supervisors are appointed when the Family Court approves the request and judges the need of supervisor for comprehensive guardian or limited guardian.
In Korea, births, deaths, marriages, divorces and adoptions must be recorded in the family register, a legal record of each family, which is kept at the city hall of the area where the family resides. Previously, when an incapacitated or partially incapacitated person made a request for guardianship, it was necessary for the guardians to have this recorded in the family register. This had been criticized as insensitive to the feelings of the incapacitated or partially incapacitated and their relatives. There is, however, a need to make a record open to the public in order to protect both parties, therefore appointment of guardian is recorded in the family register but restricted to general public.
Voluntary guardianship is a new system of representation, which can be resorted to when a person is recognized to have insufficient judgement due to mental disorder. The voluntary guardianship contract must also be registered. The following paragraphs describe its scope and safeguards.


· The voluntary contract gives the mandated guardian power to represent the principal in all or part of his/her business affairs, daily life, convalescence care and property management.
· The contract comes into effect when a supervisor of the voluntary guardian is appointed.
· The Family Court appoints a supervisor of the voluntary guardian at the request of the principal, the principal’s spouse, relatives within the fourth degree of relationship or a mandated voluntary guardian, when a person lacks capacity due to mental disorder, providing that the voluntary guardianship contract has been registered.
· A mandated voluntary guardian or his/her spouse, a lineal relation or sibling of the principal cannot be the supervisor of a voluntary guardian.
· A voluntary guardian must respect the principal’s will and consider his/her mental/physical condition and personal life, when dealing with business affairs.
· The duty of the supervisor is to prevent the voluntary guardian from abusing the power of representation, by supervising the principal’s business affairs and giving periodical reports to the Family Court.


Our Bill consists of 4 guardianship system; comprehensive guardianship, limited guardianship, special order and voluntary guardianship contract. The guardianship system will serve well as a citadel for the incapacitated. Though the Bill grant authority to guardians to decide simple medical treatment, making important medical decisions such as euthanasia and informed consent would be the top priority for the Civil Law.
In addition, custody in the Bill, based on the Voluntary Guardianship Contracts System, gives a voluntary guardian no authority to make decisions concerning medical treatment accompanied by critical procedures, or medical decisions which terminate the principal’s life. Suggestions either to bring this area of decision-making under court supervision, or draft new legislation were also made. However, in my view much more debate is necessary on this topic.

참고자료

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