민법상 성년후견제도 도입에 따른 국제사법상 한정치산․금치산선고 및 후견제도에 관한 개정방향

Adult guardianship system refers to a system that is newly introduced under the revised civil law with a view to overcoming problems of quasi-incompetence / incompetency system and guardianship system that has been conventionally accepted under the civil law, and individually coping with a variety of circumstances people face in their need for protection in response to social requests. This study takes a perspective of comparative law to examine judicial precedents of foreign countries including United Kingdom, United States, France, Germany and Japan, so that it can suggest theoretical and practical judgment criteria for further implementation of adult guardianship system. Moreover, this study seeks to examine general matters about adult guardianship, limited guardianship, specific guardianship and guardianship contract, which are stipulated under the revised civil law, with a view to helping understand them. Next, this study seeks to examine how the abolishment of quasi-incompetence / incompetency system under the revised civil law as well as the introduction of adult guardianship system may create potential effects－good or bad－on the sentence of quasi-incompetence and incompetency and the international guardianship under private international law. First, this study examines certain issues under private international law, such as jurisdiction for sentence of quasi-incompetence or incompetency, determination of governing law and the recognition of judgment rendered by foreign court. Moreover, it takes a view of international guardianship laws in foreign countries from the perspective of comparative law, and examines matters of major Hague Conventions regarding international guardianship so as to explore possible legislative orientations of South Korea's international guardianship law. And this study addresses matters regarding the determination of governing law for international guardianship under private international law, and the scope of governing law. Furthermore, this study discusses matters about the jurisdiction of international guardianship and the recognition of judgment rendered by foreign court with a view to review about possible ways to revise international guardianship system under private international law, and also examines certain issues such as the commencement of adult guardianship under private international law, the stipulation of adult guardianship system, and discretionary guardianship contract. Supposedly, international jurisdiction over guardianship cases is fundamentally credited to ward's state of habitual residence, and it is necessary to accept jurisdiction of state of nationality in exceptional cases, if applicable in detail. Moreover, final judgment rendered by foreign court satisfies certain requirements for accepting any judgment rendered by foreign court, so its res judicata becomes recognized in South Korean court, but it may be necessary to modify said final judgment more or less depending on characteristics of individual non-litigation cases. With regard to the commencement of adult guardianship and the stipulation of adult guardianship system under private international law, it is necessary to more positively address the issues regarding future revision of private international law. This study gives a personal suggestion for two revisions regarding guardianship under private international law in step with the abolishment of quasi-incompetence and incompetency system under civil law as well as the introduction of adult guardianship system. Finally, it is appropriate to adopt governing laws on discretionary guardianship contract in accordance with regulations on guardianship under private international law, and take careful consideration of regulations on discretionary representation and legal action process under private international law before determining any issues of representation and process caused by discretionary guardianship. In the future, it will be important to make more diversified and formulated theoretical establishments and take legislative considerations to facilitate rational practice of adult guardianship system introduced under revised civil law, and also explore proper ways to revise current laws on international guardianship.