일본 민법상 임의후견계약제도

The Voluntary Guardianship Contracts System in Japan

In July 1995, the Civil Law Subcommittee of the Japanese Legislative Council decided to address the problem of guardianship for mentally incapacitated adults. As a result of the subcommittee's findings, four new laws to regulate guardianship were enacted on 1 December 1999. These came into force on 1 April 2000. 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. 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. 1. 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. 2. The contract comes into effect when a supervisor of the voluntary guardian is appointed. 3. 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. (Voluntary Guardianship Contracts Law Article 4.) 4. A mandated voluntary guardian or his/her spouse, a lineal relation or sibling of the principal cannot be the supervisor of a voluntary guardian. (Article 5 ibid.) 5. A voluntary guardian must respect the principal's will and consider his/her mental/physical condition and personal life, when dealing with business affairs. (Article 6 ibid.) 6. 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. (Article 7 ibid.) There are some merits in the voluntary guardianship contracts system. They are 'to respect the self-determination' and 'to cut down on expenses'. On the other hand, there are also some problems in connection with the system of representation. Therefore we have to work out our legislation of the voluntary guardianship contracts system very carefully.