成年後見制度의 導入에 따른 國際後見法의 再考察

• 영문명: A Review on Current International Guardianship Act before Introduction of Adult Guardianship System
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 李秉和(Byung-Hwa Lee)
• 간행물 정보: 『비교사법』比較私法 제13권 제3호, 85~137쪽, 전체 53쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.09.01

영문 초록

  In the framework of current civil law, typical examples of institution in favor of the handicapped with mental defects or insufficiencies are civil system for the quasiincompetent and incompetent and guardian system. Unfortunately, however, these two systems are not very much available currently on the rapid way to aging society. Thus, it is necessary to introduce adult guardianship system helpful practically for incompetent majors lacking in judgment in the aspect of property management and personal care or custody. Originally, the adult guardianship system is a legitimate instrument that aims to respect self-decisions of elders and disabled persons to the utmost and prevent them from any potential damage attributed to their headlong behaviors. This system has been already legislated and enacted in most of advanced countries. Although there are some academic discussions about this system in Korea, however, there is not yet any full-scale lawmaking work for it.
  Therefore, this study intends to point out the questions of current civil guardianship system and also underscore the significance and necessity of adult guardianship system. Moreover, it intends to address any possible direction and challenges of adult guardianship system through examination into this system from the angle of comparative law. On the other hand, our globalized society faces increasing possibility of disputes with international guardianship because of remarkable gaps in legislative case, jurisprudential hypothesis and legal case among countries. That is why it is necessary to make a little further examination into what private international law provides for international guardianship, and also analyze the questions in construction of such guardianship system from a perspective of private international law(conflict of laws) before introduction of adult guardianship system within a boundary of substantive law(civil law). In this regard, this study intends to investigate relevant legislation in major advanced countries and address current provisions about international guardianship system in Hague Conventions, so that it can seek for any possible legislative direction of Korea"s private international law. In addition, this study also takes multilateral approaches to address challenges for review in current international guardianship law and various issue points that may be posed in the aspect of private international law after introducing adult guardianship system, so that it can provide theoretical grounds helpful to overcome possible challenges in the application of international guardianship law.
  Summing up, this study addresses two major issues, i.e. 1) introduction of adult guardianship system in civil law and resulting challenges, and 2) current profile and perspective of international guardianship law on basis of private international law. First, this study points out the questions of guardianship system provided in civil law as substantive law; underlines the necessity of introducing adult guardianship system; looks into current adult guardianship system enforced already in advanced countries from a standpoint of comparative substantive law; and examines possible directions of introducing adult guardianship system appropriate for Korea and resulting challenges as well on the whole. Next, this study addresses the contents of international guardianship law as provided in private international law(conflict of laws); examines legislative standpoints about international guardianship law in each country from angle of comparative private international law; and outlines provisions relevant to international guardianship law in Hague Conventions. Finally, this study is to address possible construction of international guardianship law and relevant challenges for consideration before introducing adult guardianship system.

목차

Ⅰ. 序論
Ⅱ. 成年後見制度의 導入과 課題
Ⅲ. 國際後見法의 現況과 展望
Ⅳ. 結論
[참고문헌]
【ABSTRACT】

키워드

成年後見制度 國際後見法 裁判管轄權 準據法決定 헤이그國際私法會議 外國判決의 承認 限定治産 禁治産 普遍化槪念 持續的代理權授與法 本國法 常居所 adult guardianship system international guardianship act jurisdiction of judgment choice of governing law Hague Conference on Private International Law recognition of foreign judgment quasi-incompetence incompetence normalization Enduring Powers of Attorney Act lex patriae habitual residence