고령자의 후견제도와 자기결정권

Abstract

The current Korean Civil Act fails to provide legal consideration to protect such aged people. However, in Korea there are only conservatorship and guardianship as general provisions to support those who have lost legal competence or have legally limited competence. The primary purpose of the existing systems is to protect incompetent persons. However, though it is to protect incompetent persons by discriminating them from competent persons, on the other hand it is actually utilized as a means to protect competent persons according to the legal purpose of protecting the safety of transactions, too. Furthermore, it is not too much to say that the current guardianship is almost becoming a dead letter due to its impracticability. The current guardianship is difficult to smoothly protect aged people as well as mentally handicapped persons depending on their competence levels because it deprives or limits legal capacity regardless of their competence levels. Also, it basically protects mentally handicapped persons only, while it does not protect physically disabled persons. This study, under the principles such as protection of principal, respect of self-decision, protection depending on supplementarity and necessity, private conservatorship and partial conservatorship, and in the aspects of legislation, suggests adult conservatorship systems including a tentatively named Voluntary Adult Conservatorship Act as a prior assistant and protective system, a tentatively named Legal Conservatorship Act as a posterior defensive and protective system.