가사소송에서의 의사결정장애 성인의 사법접근권 보장 (A Study on the Guarantee of Right of Access to Justice for Adults with a Decision Making Problem in Domestic Litigation)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 26권 / 1호 / 147 ~ 173페이지
· 저자명 : 김원태

초록

Even though a right is guaranteed by substantial law, the right will be meaningless if the right of access to justice is guaranteed for everyone so that they can fully observe it. Access to justice narrowly refers to the right of not being discriminated and being provided with necessary convenience in a litigation procedure. It is also a comprehensive term encompassing people’s effective access to the judicial system, procedure, information, and venue of law enforcement. In an advanced society, proper access to the judicial procedures is definitely guaranteed.
This study briefly reviewed the guarantee of right of access to justice for adults with a decision making problem in domestic litigation, emphasizing that it was important to understand there were limitations with self-determination rather than distinguishing “those who were capable of decision making” from “those who were incapable of decision making.” In the study, those who had limitations with self-determination were called “adults with a decision making problem.” The broad scope of the term includes individuals with limitations with self-determination due to developmental disabilities, mental disorders, dementia, and brain injuries. In the study, it was used to refer to individuals with a developmental disability.
In the domestic case procedures, it is critical to guarantee the concerned person the judgment right(self-determination right) to form or check his or her status relationships through a procedure. It will be thus desirable to establish a separate provision saying that he or she has procedural capacity as long as he or she has mental capacity unlike in a civil case. It is also necessary to introduce the statement assistant system based on the understanding that individuals with a developmental disability need “translations” and accordingly a statement assistant. In addition, all kinds of notices are extremely important in a litigation and non-litigation procedure. If the concerned person is not able to read or understand a notice due to his or her disability, his or her access to the judicial procedure will be completely blocked off. A notice should thus be written in easy sentences and delivered to the concerned parties in the most effective way. The Family Litigation Act should have a new provision that an appellate court should ask the concerned and interested parties(except for the complainant) of the original trial to send a copy of bill of complaint in case of immediate appeal in order to guarantee their right of access to justice in a practical sense.

영어초록

Even though a right is guaranteed by substantial law, the right will be meaningless if the right of access to justice is guaranteed for everyone so that they can fully observe it. Access to justice narrowly refers to the right of not being discriminated and being provided with necessary convenience in a litigation procedure. It is also a comprehensive term encompassing people’s effective access to the judicial system, procedure, information, and venue of law enforcement. In an advanced society, proper access to the judicial procedures is definitely guaranteed.
This study briefly reviewed the guarantee of right of access to justice for adults with a decision making problem in domestic litigation, emphasizing that it was important to understand there were limitations with self-determination rather than distinguishing “those who were capable of decision making” from “those who were incapable of decision making.” In the study, those who had limitations with self-determination were called “adults with a decision making problem.” The broad scope of the term includes individuals with limitations with self-determination due to developmental disabilities, mental disorders, dementia, and brain injuries. In the study, it was used to refer to individuals with a developmental disability.
In the domestic case procedures, it is critical to guarantee the concerned person the judgment right(self-determination right) to form or check his or her status relationships through a procedure. It will be thus desirable to establish a separate provision saying that he or she has procedural capacity as long as he or she has mental capacity unlike in a civil case. It is also necessary to introduce the statement assistant system based on the understanding that individuals with a developmental disability need “translations” and accordingly a statement assistant. In addition, all kinds of notices are extremely important in a litigation and non-litigation procedure. If the concerned person is not able to read or understand a notice due to his or her disability, his or her access to the judicial procedure will be completely blocked off. A notice should thus be written in easy sentences and delivered to the concerned parties in the most effective way. The Family Litigation Act should have a new provision that an appellate court should ask the concerned and interested parties(except for the complainant) of the original trial to send a copy of bill of complaint in case of immediate appeal in order to guarantee their right of access to justice in a practical sense.

참고자료

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