성년후견제도의 개정방향

On the Reform of Korean Protection System for mentally incapacitated Adults

In many developed countries, the protection system for mentally incapacitated adults (MIA) has been reformed: the german Reform Act 1990(applied from 1992), the japanese Reform Act 1999 (applied from 2000) and the english Mental Capacity Act 2005 (applied from 2007) are the cases. Recently, on 5 March 2007, the french Code Civil is greatly amended to introduce a new protection system for MIA, which is applicable from 1 January 2009. The Premise of the french Reform Act is that the protection system for MIA shall respect dignity and human rights of MIA, guarantee their autonomy and minimize the public interventions for assisting them, but their needs shall be fully satisfied, if it is asked. While the present french protection system for MIA focuses on legal guardianship, the reformed one significantly changes legal guardianship, in that a legal guardian is not automatically positioned by statute (the Code Civil), but appointed by Juge des Tutelles, who, of course, should respect the wishes and hopes of a MIA. In addition, the reformed french protection system introduces a donor-appointed advocate with lasting powers of attorney, which shows recent trends of move of emphasis from the legal guardian (statutory or court-appointed guardian) to the donor-appointed guardian. Finally, the reformed protection system makes the role of courts multi-functional, namely enlarges the powers of courts to supervise court-appointed guardians and donor-appointed guardians and to give one-off order to assist families informally caring MIA, who want only to get a specific order for a suitable legal protection, whenever they are confronted with legal problems arising from care. Korean protection system for MIA is very old fashioned and obsolete, compared with those of the said developed countries. When a new reform legislation is able to reflect MIA s demands and respect their human rights and dignity, it should take into consideration new trends the french Reform Act 2007 and the english Mental Capacity Act 2005 vividly have shown.