高齡化社會에 비추어 본 行爲無能力制度의 문제점과 後見制度의 擴張

• 영문명: Problem of an Incompetent Person and Adult Conservatorship Act
• 발행기관: 한국재산법학회
• 저자명: 宋鎬烈(Song Ho-Yeol)
• 간행물 정보: 『재산법연구』財産法硏究 第23卷 第2號, 37~75쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.10.01

영문 초록

  Now, the world is faced with an aging society. Korea is not exceptional, either: it is forecasted that, included in aging societies on July 1, 2002, Korea will be becoming a super-aging society more rapidly compared to other countries. Accordingly, aging population who need property management and personal care will rapidly increase. It is common that, as people become aged, naturally they are behind in their mental and physical abilities, shunned by the community, and accordingly they become unable to deal with their private affairs properly. Especially, the necessity of medical cares and personal cares which require help from others in their daily life will be increasing. Also, in their management of property, deterioration of common sense and good judgment makes it difficult for them to reasonably do business with others and to cope with frauds of others in the rapidly increasing electronic transactions. Like this, aged people are in a disadvantageous position in doing business in the name of themselves with others. In this regard, they need help from others.
  The current Korean Civil Act fails to provide legal consideration to protect such aged people. However, in Korea there are only conservatorship and guardianship as general provisions to support those who have lost legal competence or have legally limited competence. The primary purpose of the existing systems is to protect incompetent persons. However, though it is to protect incompetent persons by discriminating them from competent persons, on the other hand it is actually utilized as a means to protect competent persons according to the legal purpose of protecting the safety of transactions, too. Furthermore, it is not too much to say that the current guardianship is almost becoming a dead letter due to its impracticability. The current guardianship is difficult to smoothly protect aged people as well as mentally handicapped persons depending on their competence levels because it deprives or limits legal capacity regardless of their competence levels. Also, it basically protects mentally handicapped persons only, while it does not protect physically disabled persons.
  Under the circumstances, I think, we are in a situation to have to prepare legislative coping strategies because there is a limitation to protect aged people only by interpretation or construction of the current legislation in this aging society. Other countries including France, Austria, Germany, Sweden, UK, USA, Canada, and Japan that experienced the aging society in advance compared to Korea have already put new legislation of protecting aged people into operation, and are now working on amendments of it. We, Korea, rapidly becoming an aging society, are in a situation to prepare an institutional system to protect aged people.
  This study, under the principles such as protection of principal, respect of self-decision, utilization of remained competence, normalization, protection depending on supplementarity and necessity, private conservatorship and partial conservatorship, and in the aspects of legislation, suggests adult conservatorship systems including a tentatively named Voluntary Adult Conservatorship Act as a prior assistant and protective system, a tentatively named Legal Conservatorship Act as a posterior defensive and protective system, and further a tentatively named Adult Conservatorship Registration Act as a new public notice system. However, I acknowledge that more researches on the adult conservatorship are necessary in the future based on this study.

목차

Ⅰ. 序論
Ⅱ. 限定治産ㆍ禁治産制度의 問題點
Ⅲ. 身上監護의 問題點
Ⅳ. 後見人制度의 擴張
Ⅴ. 結論
참고 문헌
〈Abstract〉

키워드

행위무능력자 후견 고령화사회 한정치산자 금치산자 후견감독 심신상실 심신박약 법정후견인 성년후견 임의후견 성년후견등록 Conservatorship aging society aged people mental and physical abilities adult conservatorship