지적 장애인의 의사능력의 판단기준- 대법원 2022.5.26. 선고 2019다213344 판결의 검토 -

Abstract

The factors considered in precedents as major standards of judgment as to the presence of mental capacity of the person with an intellectual disability persons before the Supreme Court Decision 2019 Da 213344 Decided May 26, 2022 are as follows: ① the degree and description of intellectual disability, ② the welfare laws for the disabled considering people of intelligence quotient as low as 70 to be the person with an intellectual disability, ③ description of legal behavior, and, ④ doubt of rationality of certain legal behavior based on the grounds of the legal behavior, etc. The Supreme Court precedent subject to analysis comprehensively considers these factors and has developed legal principles towards specification of each factor and the conclusions are feasible. Especially, this precedent is meaningful in that it has expressly presented standards of judgment as to the presence of mental capacity of the person with an intellectual disability for the first time, which has not been available in the previous precedents. Of course, the instructions of the above-mentioned precedent has not given up the legal principles of firm precedents that have individually decided mental capacity in relation to specific behavior. However, it can be understood that the Supreme Court has tried to specifically present standards of judgment as to the presence of mental capacity in order to maintain legal principles of the previous precedents and develop them into more specific directions. Furthermore, such efforts in precedents express reflection or confession of unclear standard of judgment as to the presence of mental capacity. It is because the instructions have added expressions such as ‘specific description of legal behavior, level of difficulty and importance of responsibilities imposed thereupon’ which have not been clearly suggested in the existing precedents in order to more specifically present standards of judgment as to the presence of mental capacity which can be applied to mental capacity of the person with an intellectual disability or issues where presence of mental capacity matters. If the instructions of the Supreme Court judgment presented above are the expression as understood by the author, in the future precedents, the direction will specify the factors or standards of judgment to decide mental capacity according to the Supreme Court judgment subject to analysis.