성년후견과 신탁: 새로운 관계설정의 모색

Abstract

As a study on legal systems, this article proposes to set up a new legal principle of the relation between adult guardianship and trusts, which is able to explain relevant social and legal phenomena, while it does not intend to explain social phenomena prevalent in the area of adult guardianship and trusts. This kind of studies should be based on research methods of social science and is intended to suggest a new social and legal rule to purposedly change social phenomena. In other words, policies and legislative measures suggested by the study are based on the proper methods of social science. This article premises that Korean government including judiciary, as a ratifying state of the UN Convention on the Rights of Persons with Disabilities, shall be obliged to improve the adult guardianship system to the direction of supported decision making schemes. Based on such an international obligation, this article suggests that trust schemes should be utilized on the way to the introduction and settlement of supported decision making system. To prove this suggestion, this article argues that adult guardianship system should be transformed to a supported decision making scheme, which UN Committee on the Convention on the Rights of Persons with Disabilities has urged ratifying states to develop on the basis of Article 12 of CRPD. As supported decision making schemes are evolving, some vacancy of property managements of persons with impairments to decision making abilities must take place, which, this article argues, can be filled by trusts. Whereas trusts has traditionally alternated the necessities of adult guardianship, this article argues that trusts should be placed in the center of the property managements of the persons with impairments to decision making disabilities; that, on the contrary, adult guardianship should be resorted to as supplements to trusts. For the purpose of managing property of those persons, this article argues that the purpose of trusts should be to safely and continuously spend their property in accordance with their present and future needs of daily expenditure, care and medical treatments; that civil trusts would be much better positioned to meet such needs rather than commercial trusts run by financial institutions.