현행 민법상 후견제도의 문제점과 성년후견제도의 도입에 관한 고찰

Abstract

Recently, legal problems related to the elderly people have been the critical issues in ageing society of the world. Adult guardianship system is included in the area that the legal researchers should consider. In fact, according to the process of ageing society, people who cannot treat their property or personal problems have increased because of their physical or psychological disabilities. So, the social security system to protect or support for the disabled should be a critical issue. Almost all people are inclined to suffer from physical and psychological regression on the progress of aging. One of the symptoms is a general trend that they cannot stand on their feet without others' support. On the other hand, they will suffer from memory problem because of their physical regression or judgement disorder though it is not caused by serious diseases such as senile dementia or stroke. The elderly who suffer from those kinds of diseases may well be an target of various wicked crimes. A rapid progress of a nuclear family structure make the elderly isolated from the family member and excluded from economical benefits. This study focuses on the guidance of the elderly based on the social system. In current civil law system, however, a system of an incompetent person is classified as three categories relied on the rigid and monolithic standard: a minor, a quasi-incompetence, and an incompetence. The three systems, such as a quasi-incompetence, an incompetence, and guardianship system, are the major structures for the elderly and the mentally disabled. However, the current legal system has not protected the property and personality for the people of lacking communicative ability and the elderly people of physical impediment, so the guardianship should be supplemented. The legal structure for the guardianship system should be immediately established in order to support the elderly, which is separated from the system for an incompetent person. The system should value the right of the person's own determination and be revised for practical supporting those who need the guardianship. In advanced countries, they already established a legal adult guardianship system as a way of protecting a self-determination right of the elderly and the disabled. The system also prevents them from illegal disadvantages, mistakes, or immature activities. This study, first, reviewed the problems of current legal system in quasi-incompetence, incompetence, and guardianship system. Second, it pointed out an adult guardianship system in foreign countries and discussed the introduction and the solution of the system in Korean society. Third, this paper concluded that the legal system of an adult guardianship should be enacted for an ageing society in Korea.