임의후견 우선의 원칙에 대한 고찰

A Study on the Priority Principle of the Contractual Guardianship - Cass. 1 re civ., 4 janv. 2017, n° 28669 -

The guardianship contract reflects the principle of respecting one s own opinions, which is the most important ideology of the adult guardianship system. Therefore, if there is a guardianship contract, the contractual gudianship should be applied first rather than the legal gudianship and it shall be achieved with the priority principle of contractual gudianship. However, since it is not an absolute principle, in the case that the legal gudianship is counted as a more appropriate protective measure for the protection of one s own, exceptionally, the legal gudianship may be initiated. In France, after introduction of the contractual gudianship((mandat de protection future) under the revised law in 2007, the Court of Cassation sentenced precedents related to the contractual gudianship in 2011 and 2013. Nevertheless, they were being criticized because the priority principle of contractual gudianship was not observed. These two precedents were similar to the decision of the Supreme Court of Korea(Supreme Court 2017.6.1.Ja2017seu515 decision) which was about a relationship between the contractual guardianship and legal guardianship. Meanwhile, when the issue of relationship between the contractual guardianship and legal guardianship was raised again in France, the Court of Cassation explicitly declared the priority principle of contractual gudianship in the subject judgement. Unlike precedents of the Court of Cassation in 2011 and 2013, which could be described as a kind of defensive guardianship contract, the subject judgement was a legal guardianship case that was filed before effectuation of the guardianship contract. That was a common problematic case of relationship between the contractual guardianship and legal guardianship under the first clause of Article 959-20 of the Korean Civil Code. The adult guardianship system of Korea is still in its early stage of implementation and actually applied cases are also lopsided to the legal guardianship. However, at the status when various proposals are being sought to promote the contractual guardianship complying to the ideology of respecting one s own opinions, we will analyze, compare and study the subject judgment with the Korean law because such case may be problematic as well as in Korea.