계약에 의한 복지의 법적 제문제

Due to the introduction of a new quasi-incompetency system on the Civil Act and the enforcement of a system of long-term care insurance for the aged, Korea will enter into a contractual social welfare system. A contractual social welfare emphasizes the rights and duties of the parties and has a merit to be applied to the principle of self-determination, but will be run against the limit of welfare under contracts on the specialty of social welfare. In particular, it is a needed field to discuss sufficiently whether or not a person who uses a social welfare service has a capacity of contrahendo or an employer has a duty of acceptance. This paper examines a duty of acceptance of welfare service providers on whether or not it is possible for 「the contractual suitability with welfare areas and its matched reflection」 and explores this question through comparative references with medical(treatment) contracts. In the case of an request of welfare service supplies from users, in general, it is understandable that an employer is originated on the duty of acceptance so that a social condition such as the number of welfare service providers in the relevant area shall be considered while one compares users’ circumstances with employers’ circumstances. In addition, whether or not an employer is given a duty of acceptance shall be examined separately and concretely. As a result, it is understandable to enter into a using contract of welfare services at the time of users’ request in the appropriate case that an employer is given a duty of acceptance and in this regard, in case that a user has any damages from denying an employer’s acceptance without any reasons or denying an acceptance to attract the interests for himself or herself, it is possible to take both responsibility of unlawful acts and responsibility of default for employers resulting from the breach of duty of acceptance under the using contract of welfare services.