본인 존중의 성년후견제도에 대한 평가와 입법적 과제

Our Civil Act introduced the adult guardianship system, which replaces the past incompetence system and limited incapacity system, to prepare for situations in which the person is unable to handle affairs related to property and personal life. Individuals must also be able to autonomously make fundamental decisions regarding the expression of their personality and way of life in their own areas of life. The adult guardianship system is based on the basic philosophy of respecting the person's right to self-determination, and is a system designed to enable a person to utilize one’s decision-making ability. Respect for the right to self-determination, which is the basic principle of the adult guardianship system, can be strengthened and improved through decision-making support. The basic idea of ​​the adult guardianship system is to respect the person's will and existing abilities. However, the current Civil Act regulations and the system operation process so far have some limitations in realizing one's right to self-determination and establishing it as a decision-making support system for this purpose. For this reason, there is a demand for legal and institutional improvements so that the adult guardianship system can be used as a decision-making support system not a decision-making agency system. This paper presents legislative improvement tasks regarding the adult guardianship system. First, the provisions of the current Civil Act, which sets the scope of those entitled to file a trial for commencement of adult guardianship, expand the right to file a trial for commencement of guardianship to a fairly wide scope, including relatives, prosecutors, and local governments in addition to the principal. Excessively broadening the scope of claimants for initiation of guardianship trials creates difficulties in respecting the individual's right to self-determination and realizing decision-making support. Since it is possible to receive assistance from others in determining whether to request the commencement of a guardianship trial, the scope of the claimant may be defined in a supplementary manner to allow relatives, etc. to file a claim when it is impossible or significantly difficult to file a claim. Therefore, it is not desirable to expand the scope of claimants as stipulated in the current Civil Act, so legislative improvement is necessary. Second, when determining who is eligible for adult guardianship, how to interpret the requirements is a very important matter in deciding whether to initiate adult guardianship. Legal provisions regarding the determination of persons eligible for adult guardianship must be strictly interpreted to remain faithful to the ideology of the adult guardianship system that respects the individual's will. Third, the process of selecting an adult guardian must also be operated faithfully to the ideology of the adult guardianship system. The adult guardianship system had the expectation of revitalizing the guardianship system through professional guardians with specialized knowledge. However, as the overwhelming majority of adult guardians appointed by the court are relative guardians, problems of illegal use of one's property sometimes arise. Issues such as systematic management and supervision of adult guardians to protect personal information must be continuously discussed. The Civil Act does not make provisions to determine the period of adult guardianship. The Constitutional Court ruled that the failure to set a period of adult guardianship was constitutional. Regardless of the validity of the Constitutional Court's decision, the adult guardianship period is an important element in the operation of the adult guardianship system, so it appears that it should be supplemented through future legislative improvements.