성년후견 및 한정후견에서의 법률행위 취소제도 개선 방향

Abstract

Korean Civil Code limits the legal capacity of an adult ward by allowing his/her guardian to cancel a contract made without the agreement of guardian. This aims to protect the person devoid of mental capacity from unreasonable contracts ; however, it also raises the question of whether it is desirable to allow a third party to cancel his/her contracts against their will. For this law is also contrary to Article 12 of the UN Convention on the Rights of Persons with Disabilities (“CRPD”), this cancellation right of Korea’s guardianship system is being asked to get abolished. However, cancellation right has been regarded as a quite useful mean to protect an adult ward from a wicked dealer or acquaintance with malicious intents, so it is fairly certain that there will be a strong backlash about abolishing this right. Therefore, this study first analyzed how useful this cancellation right is in real society by presenting a survey, and specifically investigated specific situations through an expert interview. It turns out in the survey that cancellation right is more needed for a ward decided specific guardianship who has trading behavior rather than adult guardianship or a limited guardianship. Based on the survey data presenting the specific situation needed the cancellation right, this study investigated foreign legal systems to seek a different legal system as an alternative to grant the cancellation right to a vulnerable person. In particular, this study tried to deduce implications through analysis of the shift of burden of proof under Law of the United Kingdom and the recently revised consumer contract law in Japan, etc.