성년후견법의 시행준비작업상의 몇 가지 이론적, 실천적 문제

Abstract

As of July 2013, a new adult guardianship, which is based on a different perspective from the current ‘judicial declaration of legal incapacity’ regime, comes into force. Even though the protected person who will be the guardian service user, potential guardian, and relevant officers including family court judges are not familiar with the new system, the preparation work for the implementation of the new system seems not to have been in concert. But for the coordinated preparation work, the new system would be reduced to the change of appearance of the current system. This paper deals with some theoretical and practical issues, with view to enhancing the understanding by relevant officers and academics of the new adult guardianship system. In this respect, the close relation of the new system with UN Convention of Rights of Persons With Disabilities and its implications are dealt with, because the new Korean adult guardianship was conceived to discharge the state responsibilities imposed by CRPSD on countries ratifying it. Then, some issues related to two draft Acts, draft Act of revising the Family Court Procedure Act and that of Guardianship Registration, pending the deliberation of the Parliament are dealt with, whereby whether such Acts appropriately reflect principles of the new Adult Guardianship Act(revised Korean Civil Code) is reviewed. Closely related to such issues, the scope of personal care and the criteria of the assessment of capacity to make decisions in relation to personal care matters are dealt with. Lastly, this paper suggests that guardianship service be provided for persons with low income as a kind of welfare service.