정신장애인의 불법행위에 따른 정신건강복지법상 보호의무자에 대한 감독의무자로서의 지위 여부에 관한 고찰 - 대법원 2021.7.29. 선고 2018다228486 판결에 대한 재검토를 중심으로 -

The target ruling addresses the liability of guardians under the old Mental Health Act concerning the unlawful acts of individuals with mental disabilities. It held that such guardians could be considered liable as supervisors under Article 755 of the Civil Act, while also affirming that if the individual with mental disabilities has legal capacity, the liability could be applied based on Article 750 of the Civil Act. The decision emphasized compensating victims and expanding liability not only to the individual with mental disabilities but also to the guardians. Notably, the ruling recognized the liability of mere caregivers, not just legal guardians, paralleling the legal responsibility of parents for wrongful acts of minors who are capable of bearing responsibility. This study examines the historical and comparative law aspects of guardianship under the Mental Health and Welfare Act, analyzing existing legal interpretations concerning supervisors under the Civil Act. The analysis reveals that there is no inevitable connection between guardians and supervisors. A deeper look into the target ruling highlights issues such as the ambiguity in the concept of guardianship, which creates uncertainty regarding civil liability, and the imposition of virtually impossible supervisory duties on guardians, which conflicts with the constitutional principle against penal servitude. Additionally, in light of Article 12(2) of the Convention on the Rights of Persons with Disabilities, the ruling’s premise assumes the autonomy and responsibility of individuals with mental disabilities, yet it contradicts the social model of disability. It also fails to align with the perspectives on the de-familialization and socialization of care, suggesting that recognizing guardians under the Mental Health and Welfare Act as supervisors under the Civil Act is not justified.