성년후견제도 시행 10년과 새로운 입법적 과제

Abstract

The main feature of the new adult guardianship system which came into force on 1st July 2013 is that it introduced social protection element to the area of statutory representation for the persons under guardianship, who used to be represented by family member guardians. But the new adult guardianship system has been exposed to critics that it functions as a barrier to exclude persons with dementia, developmental disabilities, or mental health issues from participation in social activities through legal actions rather than as a facilitator to promote them to do so. With this kind of concerns, the author conducted research on what new legislative tasks are required in the area of guardianship, or statutory representation, and enduring power of attorney so as for persons with decision making disabilities to be supported to participate in social activities through legal actions. As a result of the research, this paper suggests the reform of the Korean Civil Code and the enactment of a social service act the main purpose of which is to register the enduring power of attorney and assist and supervise the registered attorney. The following suggestions are among the reform of the Korean Civil Code. Firstly, this paper suggests that legal provisions on adult guardianship including those on the restriction of legal capacity of persons in the guardianship be abolished in the general part of the Civil Code; instead, the general legal provision on mental capacity shall be inserted there. It means that all the provisions on guardianship shall be placed in the family law part of the Korean Civil Code. Secondly, Adult guardianship shall be separately regulated from minor guardianship because both guardianships target at distinct purpose respectively and do not share common features except the provision on remuneration and reimbursement of expenditure spent by guardians. Moreover, this paper suggests that adult guardians shall be appointed based on the principle of necessity: the power and authority of guardians and the duration of guardianship is subject to the extent which persons under guardianship are expected to be supported immediately and in the very near future. In this regard, persons under guardianship may be allowed to do legal transactions with the consent of guardians only in the case where such transactions are likely to harm the persons under guardianship. Thirdly, this paper suggests that legal provisions on contractual guardianship shall be abolished in the Civil Code, which caused negative effects on the future of still available enduring power of attorney without any special enactment. Lastly, this paper suggests that a special act, the main contents of which are to register the enduring power of attorney documents and other statutory representation power based on various social welfare statutes and supervise those legal representatives so as for elders and other persons suffering from illness and disabilities to cope with risks they face while legal transaction, shall be enacted. The tile of that statute can be “the Supported Decision Making of Elders and Persons with Disabilities Act”; the Ministry of Health and Welfare shall be the competent department, which establishes and maintains the agency, which shall be responsible for registration of legal representation and supervision of representatives.