피후견인의 차별금지와 결격조항정비의 과제

Non-Discrimination of wards under Adult Guardianship and Abolition of Disqualifying Legal Provisions in Korea

There are lots of Disqualifying Legal Provisions (DLPs) in Korea on which wards under adult guardianship have been restricted to participate in social and economic activities in wide fields. The DLPs have generated the stigma of wards under adult guardianship and so even people who need to be protected by adult guardianship would have a reluctance to be ward. The DLPs which deprive wards under adult guardianship of their status or rights to participate in social and economic activities are not suitable means to protect public interests from danger coming out of their engaging themselves in social and economic activities. On the contrary, the DLPs are discriminations based on disability and conflict with the Convention on the Rights of Persons with Disabilities. They also infringe on the basic human rights on the Korean Constitution. Wherefore, the DLPs should be abolished right now. If any necessity to exist, we can cope with individual screening regulations in lieu of the DLPs in reference to the recent legislative bill in Japan. The following considerations should be taken into account when we make an alternative provisions to the DLPs. (1) The DLPs enumerating disability or ward should be abolished right now. (2) The alternative legislation is not necessary, if there is any regulation to evaluate the qualification for concerned task’s performance. (3) The alternative legislation should be based on the following rules. a. not to enumerate disability or ward. b. to order to stop concerned task’s performance. c. to be able to raise a objection against the oder. d. to be recovered as the reason ends.