새로운 성년후견제도에 있어서 신상보호 ―신상결정의 대행과 그 한계― (Substitution for Making a Decision Regarding Personal Affairs and Limits in the New Adult Guardianship System of Korea)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 25권 / 2호 / 147 ~ 198페이지
· 저자명 : 박인환

초록

The current Korean Civil Code provides that an adult guardian has the power of representation only for legal acts on behalf of a ward but making a decision regarding his/her personal affairs. Accordingly, it has been doubted that the adult guardian has the power of making a decision regarding personal affairs of a ward under article 947 or 938 in the current Korean Civil Code.
Additionally, it has been criticized that the current adult guardian system in Korean Civil Code was not concerned with personal affairs of the ward. For this reason, the new adult guardianship system (partially amended Korean Civil Code, March 7, 2011) provides that the power of making a decision regarding personal affairs of the ward by the Family Court could be authorized to the adult guardian. And so, in the new adult guardianship system, the official work of the adult guardian is concerned with property and physical custody.
However, this work does not include de facto acts by guardian himself/herself. According to the article 947-2 of the amended Korean Civil Code, the adult guardian's power of decision making regarding personal affairs of the ward might be exercised only for the case which the ward himself/herself may not exercise the power of decision making regarding his/her personal affairs. If the ward has to stay for medical reasons against his/her will in a psychiatric hospital or to undergo an operation which may cause its death, the adult guardian who takes the decision, has to simultaneously ask for permission from the Family Court. Furthermore, it seems that capacity to make a decision regarding personal affairs is different from legal capacity.

영어초록

The current Korean Civil Code provides that an adult guardian has the power of representation only for legal acts on behalf of a ward but making a decision regarding his/her personal affairs. Accordingly, it has been doubted that the adult guardian has the power of making a decision regarding personal affairs of a ward under article 947 or 938 in the current Korean Civil Code.
Additionally, it has been criticized that the current adult guardian system in Korean Civil Code was not concerned with personal affairs of the ward. For this reason, the new adult guardianship system (partially amended Korean Civil Code, March 7, 2011) provides that the power of making a decision regarding personal affairs of the ward by the Family Court could be authorized to the adult guardian. And so, in the new adult guardianship system, the official work of the adult guardian is concerned with property and physical custody.
However, this work does not include de facto acts by guardian himself/herself. According to the article 947-2 of the amended Korean Civil Code, the adult guardian's power of decision making regarding personal affairs of the ward might be exercised only for the case which the ward himself/herself may not exercise the power of decision making regarding his/her personal affairs. If the ward has to stay for medical reasons against his/her will in a psychiatric hospital or to undergo an operation which may cause its death, the adult guardian who takes the decision, has to simultaneously ask for permission from the Family Court. Furthermore, it seems that capacity to make a decision regarding personal affairs is different from legal capacity.

참고자료

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