성년후견제도 입법 과정에서의 주요 쟁점 및 향후 과제

An analysis of the new adult guardianship system under the revised civil code

The adult guardianship system refers to a legal assistance program whereby an adult guardian assists in the decision-making of or in looking after the rights and interests of another adult who is not mentally capable of taking care of his/her personal affairs or property. As the purpose of declaring someone incompetent or quasi-incompetent is to protect those lacking the ability to handle one s affairs due to mental incapacity, it may be regarded as an example of adult guardianship. Yet, because declaring a person incompetent may have a stigma effect and may excessively limit his/her legal capacity, it has not been properly utilized. With the dawn of the “welfare state” and an “aging society”, the paradigm for welfare has changed from that based on “unilateral measures” to one based on “contracts” and the boundary between the legal and the welfare domain have become very vague. As such, the adult guardianship system was sought as a comprehensive legal and welfare support system responding to those that are in need of such support. With the revision of the civil code in March 2011, the new guardianship system was introduced. The fundamental idea behind the revision is to respect the intention and capability of the ward, based on the principles of necessity, supplementarity and normalization. Therefore, the revised civil code clearly states that the intention of the ward should always be respected at the commencement of and throughout the entire period of the guardianship. In order to maximize the capability of the ward, various types of guardianship are introduced. While previous incompetency-related measures mostly focused on property matters, additional clauses were introduced enabling the guardian to more actively take care of the ward’s personal matters, as long as it would not infringe upon the ward’s selfdetermination. Therefore, the new adult guardianship system is fundamentally different from the previous incompetence-based system. The adult guardianship system is significant in two aspects: first, it is the first product of a long-term project to review the entire civil code, which has been revised very few times since its enactment in 1958; second, it marks an initial point for improving the interests of the disabled and the elderly through the revision of the civil code. Yet, there are many issues to be resolved, for example, the concept and scope of personalaffairs protection and the co-existing relationship between the various adult guardianship programs. With the introduction of the adult guardianship system, there is also a need for a social basis which will ensure its sound implementation. The basis of this dissertation was experience gained as a public prosecutor in the Ministry of Justice responsible for introducing the adult guardianship system and the overall revision of the civil code. Therefore, the objective of this dissertation is to provide an in-depth analysis of the values and theoretical basis for successful implementation of the newlyintroduced adult guardianship system. It first introduces the rationale for and the guiding principles of the adult guardianship system, controversial issues and policy questions raised during the legislative process. Then, by carefully analyzing the intention of the legislators, interpretation of various clauses, desirable ways of operation and possible legislative improvements are suggested. Finally, in order to ensure and strengthen the fairness and accessibility of adult guardianship system, measures to align relevant laws and regulations with the revised civil code are examined.