민법상 성년후견제도에 관한 고찰

황영두 ( Yeong Doo Hwang ) 경성대학교 법학연구소 2011 경성법학 Vol.20 No.2

The guardianship system in the Civil Code had problems such as people`s avoidance of the incompetent person system, shortcomings related to proteges` wellbeing, difficulty in the protection of juristic acts by the aged with low decision making ability, and difficulty in the protection of the disabled. To cope with these problems, the Amended Civil Code introduced the adult guardianship for adults without decision making ability. According to the system, the Family Court rules the appointment of adult guardians in consideration of expertise and fairness. In addition, the existing family council supervision system has been abolished and, instead, guardian supervisors are appointed who play the role of supervising guardians for proteges` well being. Moreover, two or more adult guardians can be appointed in order to prevent a single adult guardian`s arbitrary decision and to make joint efforts for the proteges` well being. Moreover, the guardianship contract system has been introduced newly in order to expand the area of proteges` private autonomy in determining the contents of guardianship through a contract with adult guardians. In case there is an order for the commencement of adult guardianship, the Family Court appoints adult guardians by virtue of its office for the person on whom the order was issued. Particularly as it is allowed for a juridical person to be appointed as an adult guardian, the roles of welfare institutions are expected to increase in the future. Adult guardians become the legal representatives of proteges, and the Family Court can delimit the scope of the authority of legal representation as well as the scope of authorities to make decisions on the protege`s personal affairs. Moreover, an adult guardian supervisor may demand adult guardians to submit reports on their performance of duties and property lists and can investigate the state of the protege`s properties. In order to settle adult guardianship in the future, it is necessary to solve problems related to the expenses adult guardianship. There would be no problem if the protege owns a large amount of properties, but if the protege is poor there should be supports from the state, local self governing bodies, insurance systems, etc. Because a protege`s medical acts are accompanied by risks involving the patients` body and health, such acts and particularly those invasive into the body require the patient`s consent or approval in order to be legitimate. However, it should be stipulated that treatment is possible without consent in life threatening urgent cases in order to prevent undesirable consequences or excessive expenditures. There should be measures to supervise adult guardians and prevent accidents if adult guardians take economic benefits other than just wages from their adult guardianship, or abuse the protege, or cause damage to the properties through negligence. Accordingly, it is necessary to raise experts who are able to carry out tasks related to adult guardianship, to educate involved people, and to develop methods to protect private information on registered cases of adult guardianship. Moreover, personnel in charge of adult guardianship should be secured in the relevant departments of the Family Court and administrative agencies, and unity should be established for proteges among insurance systems, adult guardianship in the Civil Code, and elderly welfare in administrative systems. In order to settle adult guardianship enacted with good purposes such as the protection of proteges` human rights and properties and the protection of their juristic acts as well as their opponents, related laws need to be finalized early through intensive discussions before they are enacted.

성년후견등록제도(成年後見登錄制度)에 관한 소고(小考)

이정래 ( Jung Rae Lee ) 전북대학교 법학연구소 2010 法學硏究 Vol.30 No.-

Scientific development has expanded human age and resulted in aging society by making lives convenient and intellectual and physical troubles as consequence of aging society lowers the ability to execute our own rights. To protect our rights from such deficiency and the counterparts who transact with, Korea`s civil code define the incapacitated as minor, quasi-incompetent and incompetent, stipulating separate protection method, and by judgment from family court through claim of a certain person, not only the deficient but also the counterpart of the transaction are protected. However, in protection method of the quasi-incompetent and the competent, there are many problems inherent, so the usage has so far been inactive, and now in the midst of facing the aging society, protection of the has become quite important. Thus, the academic world and lawyers have worked on formulatingimprovements to amend impractical regulations, and on September 18, 2009, Ministry of Justice started amending process by announcing Amendment of Part of the Civil Code Plan. However, the plan maintains the previous method `Family Relation Registration Act`, excluding registration system of adult guardian in the legislation, so there would be confusion if the new legislation is passed in the National Assembly and executed. Thus, in this paper, characteristics of the current civil code regulation over guardianship system and the adult guardian system of the `Amendment of part of the Civil Code Plan` announced by the Ministry of Justice are compared, and the improvement of the adult guardian registration system is suggested twofold. The first method is to provide separate column to treat adult guardians to record and announce on the guardian, which is individual status registration item registered by the `Family Relation Registration Act`, because if the Plan`s adult guardian system is initiated, due to massive information amount, it would be difficult to deal with and hard to recognize the counterpart of transaction. For the second method, the adult guardian system of the Ministry of Justice announced `Amendment of Part of the Civil Code has large role of public announcement since the contents that need to be registered about the guardianship is complex and varied depending on the person`s capability and necessity. This shall have easy access from the counterparts and the third part, given the adult guardian`s purpose, realization of the contents be easy, and sincerity of the contents be secured. Therefore, introduction of an adult guardian registration system directly handled by family court is needed.

성년후견인의 양성 및 관리방안

이영규 ( Young Gyu Lee ) 한양대학교 법학연구소 2012 법학논총 Vol.29 No.4

In Korea, the revision of the Civil Code shall be implemented from July 1, 2013. Adult guardianship is successfully settled in our country in order to be guardians to ensure high quality. This article describes an first consideration of Japanese and german adult guardianship system in operation particularly training and management system for the adult guardian. Japanese and German experience to secure the candidate for adult guardian indicate the tentative plan for introduction of the adult guardianship system for our country. Any suitable, willing and able adult or institution, may be appointed guardian. The Family Court may also appoint co-guardians. The Court will make the final decision based on the best interests of the person. The guardian should be careful to keep the money in the ward`s estate separate from the guardian`s own estate, maintaining separate accounts and keeping careful records of all financial transactions. Before appointing a guardian, the Judge must be persuaded that: The person is incapacitated; The person needs someone to make personal decisions for him or her and/or manage his or her affairs; and The proposed guardian is suitable, willing and able If a guardian is required, however, the court may appoint any person whose appointment would be in the best interest of the incapacitated person. Once an individual is appointed Guardian over an incapacitated adult, the Guardian then has powers and duties. The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions.

후견감독

이영규 한양대학교 법학연구소 2019 법학논총 Vol.36 No.4

On July 1, 2013, a new adult guardian system was implemented to respect the self-determination of those who cannot conduct legal acts on their own due to mental constraints and to help them live with the members of society by utilizing their residual abilities. Considering the relationship between adult guardian and incompetent who help and help with the implementation of the adult review system, even if the adult caregiver fails to comply with the purpose of the system and abuse his or her job performance by seeking his or her own interests, the incompetent does not properly raise objections to it. In this sense, it is necessary to supervise whether the adult guardian performs his or her duties properly. However, the guardian who oversees the new adult guardian system will be the primary guardian and secondary guardian in the family court, which is essential in the case of the guardian but may not have a guardian supervisor as a discretionary agency in the case of the guardian. In such cases, there will inevitably be many problems in the supervision of the guardian, and the role of the family court, the final supervisory body, will grow. In this paper, we will examine the problems related to the current supervision of the guardian and will present the individuality measures, thereby exploring ways to ensure that the rights and interests of the adult guardian are properly protected. 2013년 7월 1일 정신적 제약이 있어 스스로 판단하여 법률행위를 할 수 없는 사람들의 자기결정권을 존중하고, 잔존능력을 활용하여 그들의 부족한 부분을 도와주면서 사회구성원들과 더불어 생활할 수 있도록 새로운 성년후견제도가 시행되고 있다. 성년후견제도가 시행되면서 도움을 주고받는 성년후견인과 피성년후견인의 관계를 보면 성년후견인이 직무수행을 제도의 취지에 따르지 않고, 사리를 도모하는 등 남용하더라도 판단능력이 부족한 피성년후견인은 이에 대해 제대로 이의를 제기하지 못한다. 이런 의미에서 성년후견인이 직무를 제대로 수행하는지 감독하여야 할 필요성이 크다. 그런대 새로운 성년후견제도는 감독하는 후견감독은 1차적으로 후견감독인, 2차적으로는 가정법원에서 담당하게 되는데, 후견감독인의 경우 임의후견에서는 필수기관이지만 법정후견에서는 임의기관으로 함으로써 후견감독인이 없는 경우도 있을 수 있다. 이런 경우 후견감독에 문제가 많을 수밖에 없고, 최종적 감독기관인 가정법원의 역할을 커질 것이다. 본 논문에서는 현행 후견감독과 관련하여 문제점을 살펴보고 개성방안을 제시하여 결과적으로 피성년후견인의 권익이 제대로 보호받을 수 있는 방안을 모색하고자 한다.

일본의‘후견제도지원신탁’의 동향과 시사점

홍승옥(Hong, Seung-Ok) 한양법학회 2016 漢陽法學 Vol.27 No.3

The adult guardianship system has been implemented since July 1, 2013, and there are relative guardians, and guardians with specialized jobs among guardians. At the initial stage of the system, many relative guardians were appointed. However, some cases of abusing assets of a ward by relative guardians occurred at the process of trial or supervision phase of adult guardianship related events. As a result, the appointment of relative guardians is decreasing and the appointment of guardians with specialized jobs are increasing. Therefore, it is necessary to prepare countermeasures to prevent any side effects by abuse of adult guardianship system. Even in Japan, where adult guardianship system began to be implemented before Korea started to implement the system, as adult guardianship related events increased, cases of abusing assets of a ward by relative guardians during the process of executing assets of a ward by relative guardians. Therefore, the appointment of relative guardians decreased and the appointment of guardians with specialized jobs increased. Since guardianship supervision of family court has limitation as it relies on supervision technique mainly with ex post facto supervision, it heralded the need for guardianship supervision method by supervision in advance in order to prevent any deliberate misbehavior by relative guardian and protect assets of a ward. Now it has introduced and implemented “Guardianship Support Trust” system since Feb. 2012. As a result, assets of a ward can be protected in a broader sense by utilizing Guardianship Support Trust even when appointing a relative as his or her guardian along with the way of appointing guardian with specialized job. It seems inevitable to use Guardianship Support Trust in order for a stable operation of guardianship system in the future. Therefore, we shall prevent any side effect of abuse by relative guardians and protect assets of a ward by introducing and implementing “the Guardianship Support Trust” system of Japan. If it is determined to introduce the system, we shall take every efforts to implement the system in consideration of problems in practical operations and countermeasures based on the basic ideology of the adult guardianship system.

성년후견제도의 운영에 관한 연구

김윤정 ( Kim Yoonjung ),김정환,안문희,서용성 사법정책연구원 2017 연구보고서 Vol.2017 No.5

Four years have passed since Korea's incompetent/quasi-incompetent system― mechanisms that uniformly restricted a protected person’s capacity to act regardless of individual differences―was substituted by the adoption of an adult guardianship system. The aim of this new system was to enhance the right of self-determination by respecting an individual’s residual capacity; however, despite several competent organizations' efforts in training and educating guardians for the successful operations of the new system, there is still much to be desired. In particular, it has been noted that there is no effective supporting institution to supervise the entire process of the adult guardianship system and that there is a lack of effective communication and cooperation between guardian-related institutions. Since each process (e.g., training, appointing, supporting, and monitoring adult guardians) of the adult guardianship system is closely connected, if any one process is not properly implemented, then the entire operation of the system is negatively affected. It is, therefore, necessary to establish a supporting institution or system that can effectively supervise the entire operation of the system, build a cooperating relationship between the relevant authorities, and provide an information center where all related information is assembled, stored and managed. This research conducts a comparative legal analysis of different countries that adopted and employed adult guardianship systems to see how those countries have developed supporting institutions or systems for effectively training, appointing, supporting and monitoring adult guardians. Based on this comparative analysis, this research offers suggestions for improving Korea's management of the adult guardianship system. In order to provide practical and specific improvement measures, this research includes an analysis of interviews with experts including judges, court officials, and various professionals from guardian-related institutions. It is, however, important to note that this research mainly examines issues regarding the current status of the court-appointed (involuntary) adult guardianship system, and the question as to how we could encourage the use of voluntary guardianship contract that goes beyond the scope of this research. As Korea is rapidly becoming an aging society, national interest in adult guardianship will be rising. For devising a better way to successfully operate an adult guardianship system, it is necessary to find a way to build a partnership between courts, the government, expert groups and private organizations to improve social infrastructure. This research hopes to make an important contribution to the current practice of Korea's adult guardianship system and thereby help lead to meaningful improvements that provide adults who need guardianship service with a safe and trustworthy system.

성년후견법제의 도입에 따른 의료행위와 동의권

송호열 원광대학교 법학연구소 2012 의생명과학과 법 Vol.7 No.-

The increase of the aging population has caused problems to those people who don't have ability to manage their own affairs due to an illness such as dementia. To solve many issues related to property management and protection of human rights, the proposed amendment to the Civil Act which will cover adult guardianship was declared in September 2009. Afterwards, as the Civil Act was amended in March 7, 2011 as Act number 10429, the existing system of incompetency and quasi-incompetency was abolished and instead Adult Guardianship System has been introduced, being scheduled to be in force on July 1, 2013. With regard to medical treatments, not only stoppage of treatments to a patient, but also all medical activities by themselves may cause health care hazards. As the worst result such as loss of life may becaused seriously, consents to those activities are also regarded as important issue. One of the most challenging issues in the adult guardianship of the amended civil act is whether or not duties of adult guardians set forth in Article 947-2 of the Civil Act include consents to medical activities to their guardianees. Considering the fact that in many cases long-term disease or disability of a guardianee leads to the decision on adult guardianship, it is a very important concern for anyone to secure medical treatments to a guardianee in the adult guardianship. As the adult guardianship system imposes the obligation to care the guardianee on the adult guardian, it is an important duty of the guardian to make medical treatment and hospitalization arrangements in consideration of the changes in health status of the guardianee. However, in the event that medical treatments such as surgery are required to a guardianee who doesn't have ability to consent, who is supposed to decide on it? Acc ordingly, it is an important issue for an adult guardian to have the authority to consent to medical treatments. This study claims to specify the scope of consent in more details in the civil act because neither Article 947-2 of the amended civil act nor the medical treatment act fails to specify the authority to consent given to adult guardians. This study aims to examine and clarify the authority of adult guardian to consent to medical activities.

성년후견제도 관련 실무사례 분석 및 제도개선방안에 대한 소고 - 전문가 후견인(법인) 사례를 중심으로 -

송인규 ( Song Inkyu ) 법조협회 2017 法曹 Vol.66 No.2

2013년 7월 성년후견제도가 시행된 이래로 만 4년이 되었습니다. 위 기간동안의 성년후견개시사건을 분석해본 결과, 제도 자체의 이용실적이 미비할 뿐만 아니라 그 마저도 후견제도 중 성년후견제도가 차지하는 비중이 압도적으로 높다는 문제점이 있습니다. 2015~6년 기준 잠재적 성년후견제도의 이용자라 볼 수 있는 국민의 수가 이미 100만 명 을 넘어선 현실에 비추어 볼 때, 향후 성년후견제도가 성공적으로 정착하기 위하여 전반적인 제도의 정비가 필요한 시점이라고 생각됩니다. 필자는 2013년 제도 초기부터 서울가정법원 소속 전문가 후견인으로 활동하였고 2016년부터 한울후견센터(후견법인)를 운영하면서 다양한 사례를 걸쳐 성년후 견활동을 하였습니다. 그 결과 전문가 후견인 및 후견법인이 후견인으로 선임되어 활동하기 적합한 영역이 별개로 존재한다는 점에 착안하여 사례별로 어떤 유형의 후견인이 피후견인 보호를 위하여 가장 적합한지를 유형화시켰습니다. 피후견인의 재산이 많고 가족 간 분쟁이 있는 사례나 법적 분쟁이 치열한 사례의 경우에는 후견인으로서 전문가 후견인(법인)이 적합하며, 피후견인의 재산관리뿐 아니라 신상보호 측면이 강조되는 사례의 경우에는 사회복지영역이 결합된 후견법인이 보다 적합하다할 것입니다. 또한 성년후견제도의 발전을 위하여, 성년후견실무를 통하여 나타난 현 제도상의 문제점을 지적하고 이에 대한 해결방안을 제시하였습니다. 성년후견실무를 하다보면 흔히 겪는 금융기관과의 문제, 즉 금융기관의 성년후견제도의 이해부족에서 오는 성년후견인과의 마찰을 빚을 수 있는 사례들을 검토하고 이에 대한 해결방안을 제시하고자 하였습니다. 향후 금융기관 일선에서 근무하는 직원들에 대한 성년후견제도의 충분한 교육, 통합 메뉴얼 마련을 기초로 하여, 세부영역에 있어서 공인인증서 문제, 직원위임의 문제, 부동산담보 대출의 문제, 피후견인의 사망 후 후속사무 처리 문제를 해결하는 것이 성년후견제도의 발전을 위한 주요 과제가 될 것입니다. The adult guardianship system has been introduced to South Korea by its legislature in July 2013, and analysis of the related cases of the last four years has revealed its problems; the low rate of actual imposition, among which the portion of adult guardianship overwhelms other kinds of guardianship procedures. Considering the fact that the population of potential wards has already exceeded one million in 2015 and 2016 in South Korea, the legislators now stand at a crucial point where improvement of the overall adult guardianship program is unavoidable. The author, practicing as a professional guardian for Seoul Family Court from the very beginning of the adult guardianship program implementation at 2013, and later on running `Hanwool Guardianship Center` from 2016, has accumulated expertise dealing with various cases regarding adult guardianship. Based on an assessment that a certain ward-guardian relationship model is more suitable than the other for professional guardian/entity, this paper formulates a categorization of model relationship cases of guardians and wards match for optimal protection; In cases where wards are relatively wealthy, and are in the midst of family conflict or legal debate, appointing professional guardians is more appropriate, whereas wards who need expanded care for their personal welfare as well as financial aid are better suited with adult guardians involved in civil welfare program. Furthermore, the paper proposes a solutions to the latest problems brought upon by the actual practices of the adult guardianship programs, for the sake of system`s betterment. Resolving conflicts between guardians and financial institutions is another significant issue, where the lack of knowledge and understanding of the guardianship procedure among institutions is the main reason. Thus, for further facilitation of the adult guardianship system in South Korea, not only internal education program for awareness and formulation of cohesive manual within financial institutes is essential, but also solutions to more detailed issues such as delegation of power to an employee, mortgage problem, credit certification, termination process upon guardian`s death must entail.

요보호성인의 인권존중의 관점에서 본 새로운 성년후견제도: 그 특징, 문제점 그리고 개선방안

제철웅 한국민사법학회 2011 民事法學 Vol.56 No.-

Whereas the ‘judicial declaration of incapacity’ regime provides the guardian with the right to the administration of property of the incapacitated person and the power of dealing with his welfare and medical affairs, the new guardianship system, which is supposed to come into force since July 2013, shall aim to substitute guardian’s decision making for that of the mentally incapacitated adult in the case of his being unable to make decision; under the new protection system for the mentally incapacitated person, the right to the administration by the guardian of his property is congruent with the decision making on his behalf. In this respect, the revised civil code provisions concerning the mentally incapacitated adult deserve positive attention in that there are many provisions which are able to be invoked to such effects, even though they have weak root and do not reflect the normative demands,UN Convention on the Rights of Persons with Disability, and it is necessary to run the new guardianship to the effect of making their human rights realised. This paper argues that the revised civil code provisions in relation to the mentally incapacitated persons introduce the ‘decision making on their behalf’ system with throwing away the old ‘judicial declaration of incapacity’ regime. Such an argument inevitably leads to circumscribing the role and responsibility of a guardian appointed by the family court, which, in turn, certainly plays a decisive role when a family court orders the amount of remuneration to a guardian. In addition,it can be said that the new Korean guardian system does not provide the mentally incapacitated adult with a protection scheme in accordance with the graduality of deterioration of his mental capacity, which is characteristic of the new Japanese system for the protection of the mentally incapacitated adult. Instead, the new system very elastically provides a protection scheme in accordance with his needs, which is well demonstrated in case of a specific court order providedfor at article 959-8and successive provisions to article 959-13. Furthermore, a personally appointed guardian scheme, similar to a Lasting or Enduring Power of Attorney, is, argues this paper, more than an attested deed which a mandate contract, but, rather, has the same position to a legal guardian. This argumentation is inevitably to be acknowledged in that the personally appointed guardian, like an LPA or an EPA, is entitled to making a decision which could not be substituted by others without legal provisons to this effect, which, at the same time, justifies the intervention of the family court in the business of a personally appointed guardian. Despite positive estimation, this paper makes reveal that the new guardianship falls short of discharging international obligations imposed on Korea with ratification of the UN Convention of the Rights of Persons wit Disabilities, and suggests some practical points in relation to the implementation by the family court of the new guardianship provisions,which should be supplemented by a new revision of the the revised civil code provisions, which is a main point of this paper.

성년후견법제의 도입에 따른 의료행위와 동의권

송호열 원광대학교 법학연구소 2012 의생명과학과 법 Vol.7 No.-

The increase of the aging population has caused problems to those people who don't have ability to manage their own affairs due to an il lness such as dementia. To solve many issues related to property ma nagement and protection of human rights, the proposed amendment to the Civil Act which will cover adult guardianship was declared in Se ptember 2009. Afterwards, as the Civil Act was amended in March 7, 2011 as Act number 10429, the existing system of incompetency and quasi-incompetency was abolished and instead Adult Guardianship System has been introduced, being scheduled to be in force on July 1, 2013. With regard to medical treatments, not only stoppage of treatments to a patient, but also all medical activities by themselves may cause health care hazards. As the worst result such as loss of life may be caused seriously, consents to those activities are also regarded as im portant issue. One of the most challenging issues in the adult guardianship of the amended civil act is whether or not duties of adult guardians set forth in Article 947-2 of the Civil Act include consents to medical activities to their guardianees. Considering the fact that in many cases long-term disease or disability of a guardianee leads to the decision on adult gu ardianship, it is a very important concern for anyone to secure medic al treatments to a guardianee in the adult guardianship. As the adult guardianship system imposes the obligation to care the guardianee on the adult guardian, it is an important duty of the guardian to make me dical treatment and hospitalization arrangements in consideration of the changes in health status of the guardianee. However, in the event that medical treatments such as surgery are required to a guardianee who doesn't have ability to consent, who is supposed to decide on it? Acc ordingly, it is an important issue for an adult guardian to have the aut hority to consent to medical treatments. This study claims to specify the scope of consent in more details in the civil act because neither Article 947-2 of the amended civil act n or the medical treatment act fails to specify the authority to consent given to adult guardians. This study aims to examine and clarify the authority of adult guardian to consent to medical activities.