요보호성인의 인권존중의 관점에서 본 새로운 성년후견제도

The Main Features, Drawbacks of the New Korean Guardianship and some Proposals for its Improvement: from the Perspective of the Human Rights of the Mentally Incapacitated Adult

Whereas the ‘judicial declaration of incapacity’ regime provides the guardian with the right to the administration of property of the incapacitated person and the power of dealing with his welfare and medical affairs, the new guardianship system, which is supposed to come into force since July 2013, shall aim to substitute guardian’s decision making for that of the mentally incapacitated adult in the case of his being unable to make decision; under the new protection system for the mentally incapacitated person, the right to the administration by the guardian of his property is congruent with the decision making on his behalf. In this respect, the revised civil code provisions concerning the mentally incapacitated adult deserve positive attention in that there are many provisions which are able to be invoked to such effects, even though they have weak root and do not reflect the normative demands, UN Convention on the Rights of Persons with Disability, and it is necessary to run the new guardianship to the effect of making their human rights realised. This paper argues that the revised civil code provisions in relation to the mentally incapacitated persons introduce the ‘decision making on their behalf’ system with throwing away the old ‘judicial declaration of incapacity’ regime. Such an argument inevitably leads to circumscribing the role and responsibility of a guardian appointed by the family court, which, in turn, certainly plays a decisive role when a family court orders the amount of remuneration to a guardian. In addition, it can be said that the new Korean guardian system does not provide the mentally incapacitated adult with a protection scheme in accordance with the graduality of deterioration of his mental capacity, which is characteristic of the new Japanese system for the protection of the mentally incapacitated adult. Instead, the new system very elastically provides a protection scheme in accordance with his needs, which is well demonstrated in case of a specific court order providedfor at article 959-8 and successive provisions to article 959-13. Furthermore, a personally appointed guardian scheme, similar to a Lasting or Enduring Power of Attorney, is, argues this paper, more than an attested deed which a mandate contract, but, rather, has the same position to a legal guardian. This argumentation is inevitably to be acknowledged in that the personally appointed guardian, like an LPA or an EPA, is entitled to making a decision which could not be substituted by others without legal provisons to this effect, which, at the same time, justifies the intervention of the family court in the business of a personally appointed guardian. Despite positive estimation, this paper makes reveal that the new guardianship falls short of discharging international obligations imposed on Korea with ratification of the UN Convention of the Rights of Persons wit Disabilities, and suggests some practical points in relation to the implementation by the family court of the new guardianship provisions, which should be supplemented by a new revision of the the revised civil code provisions, which is a main point of this paper.