성년후견 및 제한능력자 제도의 문제점에 대한 관견(管見)

Abstract

Limitations in legal capacity applies to incompetent persons and quasi-incompetent persons. It is therefore possible for the guardian to cancel acts conducted by incompetent persons alone regardless of their capacity, and the guardians possess comprehensive agency right. The policy of legally incompetent persons, as in this case above, standardizes the capacity of incompetent persons by objective and uniform criteria. However, the act of adult guardianship, which is based on the policy of legally incompetent person, receives harsh criticism after the amendment of Civil Law due to the ratification of UN Convention on the Rights of Persons with Disabilities(UN CRPD). This is because UN CRPD requires not a substituted decision-making system in which the guardian makes decisions on behalf of the person with disabilities in capacity, but a supported decision-making system in which the guardian’s role is limited to supporting decisions of the person with disabilities in capacity; nevertheless, Korea’s policy of legally incompetent persons violates this requirement. In addition to the unconformity to UN CRPD, the policy of legally incompetent persons in Korea’s Civil Law has several limitations in systematic point of view and effectiveness. One of the limitations is the Civil Law’s purpose of regulation. It is doubtful that allowing unconditional cancellation of the incompetent person is suitable regardless of any cases in which one has not suffered a loss or purchased an unnecessary product, and that the same is allowed to the guardians. Another problem comes from the relation with social security act. The act of adult guardianship has to coordinate with other laws which considers senior citizens and persons with disabilities, which does not apply to the policy legally incompetent persons. Third limitation is that problems exist in taking advantage of the guardian. According to state survey, rate of usage is low and the system of regulation does not correspond to the current condition in which cancellation right is needed. The policy of legally incompetent persons, which is the base of current act of adult guardianship, needs amendment so that it not only adheres to other laws considering senior citizens and people with disabilities but also corresponds to their concrete needs. The primary condition which must be considered in planning new policies is that instead of limiting incompetent persons’ capacity, it is desirable to give support in their decisions.