‘의사결정지원’ 이념에 기반한 의정후견과 사전의료지시의 기능적 위상에 대한 분석 - 중국 ｢민법전｣ 제도 개선을 중심으로

With the acceleration of global population ageing, the legal need to safeguard the right to self-determination of the disabled and cognitively impaired has become increasingly urgent. The concept of supported decision-making has emerged as a response to the shortcomings of the ‘substitute decision-making’ model in traditional guardianship systems, with emphasis on respecting and realising the wishes and choices of the person under guardianship to the greatest extent possible. The concept of supported decision-making has been widely recognised by the international community, and the UN Convention on the Rights of Persons with Disabilities (CRPD) explicitly advocates this, prompting many countries and regions to implement intentional guardianship and advance medical directive systems one after another. Germany, the United States, South Korea, Taiwan and other jurisdictions have relatively mature system practice, reflecting the significant trend of patients and wards will as the core. Currently, China's relevant legislation is still in the exploratory stage. Although the Civil Code introduced the intended guardianship system for the first time, the lack of specific norms and detailed implementation standards has limited its function in practice. At the same time, advance medical directives at the national level has not been clearly stipulated in the legislation, only a few areas such as Shenzhen through the initial exploration of the implementation of local laws and regulations, and facing the lack of legal effect, the scope of application of the problem is not clear. Functional positioning and articulation of the two systems are not yet clear, resulting in the lack of uniform operational norms and implementation of the basis for the application of the law. Specifically, intentional guardianship focuses on representation in civil matters after incapacity, while advance medical directives deal mainly with medical decision-making, especially end-of-life treatment choices. The ambiguous definition of these two systems in the current law makes the boundaries confusing and the effectiveness of the systems difficult to implement in practice. The ambiguity of the legal positioning, the lack of institutional articulation and the lack of supporting measures have become important obstacles to the realisation of the concept of assisted decision-making. In view of the above legal and practical dilemmas, the conditions and boundaries for the application of intentional guardianship and advance medical directives should be clarified in the Civil Code and future medical-related laws, and the principle of priority application of the law should be established. Secondly, legislative provisions should be improved to strengthen the connection and coordination between the systems, and the legal effect of the guardian's authority to make medical decisions and the legal effect of advance medical directives should be clarified through legislation, so as to ensure that medical institutions, judicial departments and guardians implement the wishes of their wards in accordance with uniform standards. Finally, supporting implementation measures should be strengthened, including the establishment of a unified nationwide registration and enquiry system for intentional guardianship and advance medical directives, standardisation of the signing and entry into force procedures, and the enhancement of social publicity and professional training to raise awareness and acceptance of the new system among the public and relevant professionals. In this way, the construction of a legal support framework centred on assisted decision-making, and the promotion of the coordination and improvement of the system of intentional guardianship and advance medical directives, not only reflects the law's deep respect for human dignity and autonomy, but also provides a systemic solution of practical significance for dealing with China's social governance challenges of an ageing population.