성년후견심판의 행정법적 의의 -공무원의 임용결격사유 및 당연퇴직사유와의 관계를 중심으로

Under the current State Public Officials Act, other state officials other than political officials, cannot be appointed as public officials if they become an incompetent person under the adult guardianship, and if they become so, they shall automatically retire from their public service. In other words, the system is designed so that the judgment of whether a person is or has become incompetent plays an important role in the commencement and termination of public official relations. In any country, there is a system that requires public officials to retire if they face activity limitations due to certain health conditions. Germany uses the standard of “job competency” and Japan uses the standard of “mental and physical breakdown”. We use “incompetency” as the standard, which means “a person who continuously lacks the ability to handle affairs due to mental constraints caused by illness, disability, old age, or other reasons”, so it is practically not much different from German or Japanese standards. It will be unreasonable to regard the Korean State Public Officials Act, which sets “An incompetent person under the adult guardianship” as the standard for disqualification and ipso facto retirement, as irrational or overly strict, compared with case of Germany or Japan. The difference is that Germany and Japan can order retirement through compulsory disposition at the discretion of the administrative agency, while Korea requires a court trial to determine incompetency. In other words, the court is given the role to objectively check and determine one’s incompetency through the trial procedure. In this regard, since this process can act as an extra layer to protect the officials’ right to hold public office, the Korean system can be considered more protective of the rights of public officials than the German or Japanese systems. The system in which the court intervenes as a third-party with an objective point of view may have an advantage over the system that relies on the disposition of the administrative agency, in terms of objectivity and credibility. The system should be operated with the consideration of the meaning of the court’s determination of incompetency, in relations to the Public Officials Act.