民法一部改正에 관한 考察

Abstract

The Korean Civil Law was partially revised on February 28, 2011, proclaimed on March 7 the same year, and will be entry into force on July 1, 2013. This paper described ① an overview of the revision, ② revision details, ③ characteristics of the revised contents and ④ some necessary improvement items of the revision. 1. In the amendment process, the government proposal and 5 National Assembly members’ bills - totally 6 revised bills - were synthesized to be finally approve as the 「Partial Revision Bill of the Civil Law」 on motions by the chairperson of the Legislation and Judiciary Committee. Among other things, it is the most meaningful to improve the legal incompetence regime according social needs, which had been discussed for a long time. 2. Major revised contents are lowering the age of majority to 19 and improving the existing legal incompetence regime. Consequently, the title of competence regime was changed into limited competence regime and some contents were reformed. The revised version ① changed the existing legal incompetence regime composed of minor, quasi-competent and competent into new limited competence regime composed of minor, adult-protege, limited protege and designated protege, ② legalized the protection of private details considering aged population growth and the resulting socially environmental change, and ③ introduced the guardianship contract and discretionary guardianship for a person of full capacity to choose his or her guardian on a voluntary basis who can protect him or her. However, I doubt whether the newly introduced regime is effective because of the similarity between designated guardianship and guardianship contract. 3. The major characteristics of the revised contents are summarized as follows: ① to promote the relevant legislation advancement through the adult and limited competence regimes, ② to respect for the proteges' wishes and consider the use of remaining capacity, ③ to expand and reinforce the Family Court's role, ④ abolish the family council and give supervision of guardianship and local government some authorities to manage and supervise the guardianship work, etc. 4. Finally, the author suggests some improvement items of the revision as follows: ① to organize the Family Court’s organization and increase the number of specialists on the staff, ② to supplement the criteria of guardian for a cooperation and registration of guardianship contract through the legislation, ③ to modify and remedy inappropriate certain terms and sentences in the revised articles.