성년후견제도와 민법 제947조의 기능

Abstract

This study examines the function of Article 947 of the Civil Code in the adult guardianship system, focusing on the relationship between one's welfare and one's intention.
 Under civil law, the duty of respect for the will of a guardian is shown everywhere, but it is not clear what the meaning of respecting the will of the guardian in handling guardianship affairs is. Under Article 681 of the Civil Act, the guardian's duty of care becomes the standard for the duty of care to judge the objective welfare of the adult guardian. On the other hand, Article 947 of the Civil Act becomes the standard for active obligations to protect subjective welfare through modern interpretation and evaluation of the adult guardianship system. In addition, if the guardian did his best to protect the subjective will of the adult guardian, even if an objective and general damage occurred to the guardian, he or she should be exempted from liability for damages if his or her subjective intention was confirmed. Therefore, for example, a guardian may be able to invest at risk of principal loss in terms of his or her own true welfare in the management of the guardian's property, and if he or she proves that it is his or her subjective welfare, he or she is exempted from the resulting loss.
 On the other hand, the degree of the traditional duty of care of adult guardians for property management was the duty of care of the consignee under Article 681 of the Civil Act on delegation. However, the purpose of Article 947 of the newly introduced Civil Act, along with the ratification of the Convention on the Rights of the Disabled and the introduction of the adult guardianship system following the revision of the Civil Act, raised the need to actively protect the adult guardians and confirm the intention of the adult guardians. Article 681 of the Civil Act was a concept that included a more active duty in good faith in addition to the duty of care, which is the standard for the duty of care in the process of enacting the Civil Act. However, with the introduction of the adult guardianship system following the revision of the Civil Act in 2011, Article 947 of the Civil Act can be seen as an opportunity to separate the duty in good faith from Article 681 of the Civil Act.
 In addition, guardians should usually respect their objective welfare in relation to their will and welfare, but in relation to their subjective welfare, they should prioritize their intention in terms of guaranteeing their true right to self-determination. In addition, it should be considered that the guardian is obligated to report to the principal on the handling of guardianship affairs for the subjective welfare of the principal. Therefore, Article 683 of the Civil Act shall apply mutatis mutandis to the handling of guardianship affairs. It is a legislative deficiency.