성년후견제도 입법 과정에서의 주요 쟁점 및향후 과제

The adult guardianship system refers to a legal assistance programwhereby an adult guardian assists in the decision-making of or in lookingafter the rights and interests of another adult who is not mentally capableof taking care of his/her personal affairs or property. As the purpose ofdeclaring someone incompetent or quasi-incompetent is to protect thoselacking the ability to handle one's affairs due to mental incapacity, it maybe regarded as an example of adult guardianship. Yet, because declaring aperson incompetent may have a stigma effect and may excessively limithis/her legal capacity, it has not been properly utilized. With the dawn ofthe “welfare state” and an “aging society”, the paradigm for welfare haschanged from that based on “unilateral measures” to one based on“contracts” and the boundary between the legal and the welfare domainhave become very vague. As such, the adult guardianship system wassought as a comprehensive legal and welfare support system responding tothose that are in need of such support. With the revision of the civil codein March 2011, the new guardianship system was introduced. The fundamental idea behind the revision is to respect the intentionand capability of the ward, based on the principles of necessity,supplementarity and normalization. Therefore, the revised civil code clearlystates that the intention of the ward should always be respected at thecommencement of and throughout the entire period of the guardianship. In order to maximize the capability of the ward, various types ofguardianship are introduced. While previous incompetency-related measuresmostly focused on property matters, additional clauses were introducedenabling the guardian to more actively take care of the ward’s personalmatters, as long as it would not infringe upon the ward’s selfdetermination. Therefore, the new adult guardianship system isfundamentally different from the previous incompetence-based system. The adult guardianship system is significant in two aspects: first, it isthe first product of a long-term project to review the entire civil code,which has been revised very few times since its enactment in 1958;second, it marks an initial point for improving the interests of the disabledand the elderly through the revision of the civil code. Yet, there are manyissues to be resolved, for example, the concept and scope of personalaffairsprotection and the co-existing relationship between the variousadult guardianship programs. With the introduction of the adultguardianship system, there is also a need for a social basis which willensure its sound implementation. The basis of this dissertation was experience gained as a publicprosecutor in the Ministry of Justice responsible for introducing the adultguardianship system and the overall revision of the civil code. Therefore,the objective of this dissertation is to provide an in-depth analysis of thevalues and theoretical basis for successful implementation of the newlyintroducedadult guardianship system. It first introduces the rationale forand the guiding principles of the adult guardianship system, controversialissues and policy questions raised during the legislative process. Then, bycarefully analyzing the intention of the legislators, interpretation of variousclauses, desirable ways of operation and possible legislative improvementsare suggested. Finally, in order to ensure and strengthen the fairness and accessibility of adult guardianship system, measures to align relevant lawsand regulations with the revised civil code are examined.