한국 성년후견제도의 현황과 전망, 과제

The Korean Law of Adult Guardianship and Power of Attorney: Present and Future

The Korean law of adult guardianship and power of attorney, which is a part of Korean Civil Code, was fully reformed on July 1. 2013. The new law substituted the traditional tutorship and curatorship regime with new adult guardianship triad― full guardianship, limited guardianship, and specified measure of judicial assistance. In addition, the same reform introduced a new regime of power of attorney. The aim of this reform was to facilitate and enlarge the utilization of adult guardianship. In fact, the total number of adult guardianship case is ncreasing from 2013 on. It is expected to increase for more years or, possibly, a decade. The increase is, however, overwhelmingly driven by the increase of the number of full guardianship which roughly corresponds to tutorship of old regime, and this phenomenon would not change. Limited guardianship as well as power of attorney would not be used so much not only at present but also in the future. For the new law does not provide enough incentive to use adult guardianship forms other than full guardianship. Again, this is because the legislator, the family court judges, and many practitioners did not value the autonomy as much as the protection of the mentally-ill. Of course, there exist other voices which value the autonomy more than the protection of the mentally-ill. It holds true when we inspect the different approaches of law of adult guardianship and power of attorney in other jurisdictions such as Japan, Germany, France, US. and UK. Thus, the most important question is to decide which value is more important, the autonomy or the protection. And it is also what is not settled at all even on and after the reform.