가족생활의 형사법적 보호와 민사법적 보호 간의 긴장―노인학대 등에 대한 국가개입의 방법을 중심으로―

Abstract

The elderly abuse has recently been a hot issue, because family bondage has become weaker and weaker, and single households consisted of elderly has become rising. In this regard, some argues that a special legislation is necessary to punish or to educate elderly abusers. This paper suggests that private law approach work more efficiently than criminal law approach to prevent and reduce elderly abuses. It emphasizes that what is needed is to provide elderly with various future planning tools such as advanced directives to care and medical treatments, contractual guardianship similar to lasting power of attorney, and trusts and so on rather than to search abusers and punish them. The argument of this paper is based on the premise that elderly abuses take place because elderly lose the mental and/or physical capacity to deal with his and her property and personal welfare. If they have in advance made future planing to deal with losing capacity, most abuses can be properly prevented.