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개정 민법상의 후견계약의 특징, 문제점 그리고 개선방향 :후견대체제도의 관점을 중심으로

Title
개정 민법상의 후견계약의 특징, 문제점 그리고 개선방향 :후견대체제도의 관점을 중심으로
Other Titles
The Main Features, Problems and Improving Points of the Contractual Guardianship under the Revised Korean Civil Code: Focused on the Perspective of Alternatives to Guardianship
Author
제철웅
Keywords
임의후견; 후견대체제도; 후견의 보충성; 법정후견; Adult Guardianship; Contractual Guardianship; Enduring Power of Attorney; Alternatives to Guardianship; Subsidiarity of Guardianship
Issue Date
2014-03
Publisher
한국민사법학회 / Korean Civil Law Association
Citation
民事法學, Vol.- No.66 [2014], pp. 99-134(36쪽)
Abstract
From the perspective of policy design, statutory or judicial guardianship, whereby a guardian is to be appointed and her/his authority and power are to be granted only in accordance with legal provisions, can meet difficulties in terms of its being unable to faithfully reflect individual needs of the wards. Relevant statutes tend to seek general solution rather than address individual needs. The needs of persons with dementia, developmental disabilities or mental disabilities for supported decision making or substituted decision making can be different and diverse from case to case, so that it is theoretically best for each individual to manage and administer the very situation of disabilities in decision making at present or in the future. From the perspective of individuals, to respect autonomy and right to self determination can not be separated from respecting and protecting their human rights. That being said, it is indispensible to supplement the very deficits arising from disabilities in decision making so as for disable persons to substantially enjoy as the same right to self determination as non-disabled persons do, because otherwise disabilities could disturb the full enjoyment of such right. Such an assistance is reasonable accommodation provided for in article 3 of the UN Convention on the Rights of Persons with Disabilities. Such a reasonable accommodation in this context should be to help disabled persons easily access and make guardianship contracts, and secure faithful performance by representatives of the contracts. It can materialize by state's helping family members, relatives or friends of disabled persons make guardianship contracts free of charge, and by assisting and supervising representatives by way of establishing the public guardianship center(s). If such a reasonable accommodation is realized, the Korean guardianship contract under the new Guardianship Act 2011 will become an important alternative to guardianship and preside the guardianship in terms of available means to persons with disabilities.
URI
http://www.dbpia.co.kr/Article/NODE02395575http://hdl.handle.net/20.500.11754/47931
ISSN
1226-5004
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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