국가공무원법 제69조 제1호 중 제33조 제1호의 ʻ피성년후견인ʼ과 관련된 부분의 위헌성

초록

The Korea’s phase into the aged and risky society has exposed many Korean citizens to the risk of temporarily or permanently being diminished mental capacity and lacking mental capacity. In the case where such risk happens, those who have not yet granted enduring power of attorney on reliable persons or executed advanced directives in preparation of future incapacity situations inevitably resort to the statutory representations, whereby the other party of legal transactions in relation to, for instance, property matters comes to terms without worry of the targeted legal transactions being nullified or cancelled. Adult guardianship is no more than one of the statutory representations for those adults with decision making disabilities to live their own lives in the community. This paper deals with the unconstitutionality of Articles 33 Nr. 1 and 69 Nr. 1 combined with Article 33 Nr. 1, which is at issue of the case 2020Heonga8 of the Constitution Court, applied by Seoul Administration Court. This paper argues that the legal provisions which disqualify and forcefully lay off those are under full guardianship as public officials cannot be legally justified, especially in the case of public officials in technical posts or posts not involved in administrative decision making processes. Even though any person who has deficits in decision making abilities might be inappropriate for the posts involved in significant administrative decision making processes for any administrative decision makings to be safe and secure, disqualifying provisions of those who are under full guardianship are irrelevant to the pursued purpose of significant administrative decisions being safe and secure. At the stage of appointment, the suitability of candidates matters whereas temporary pause of activities matters when public officials go under full guardianship after appointment. This paper emphasizes that legal provisions disqualifying those who are under full guardianship discriminate against them within persons with mental disabilities in that many persons with mental disabilities, either who make use of alternatives to guardianship are, or who resort to other types of guardianship than full guardianship because the matters they have to deal with are of short terms or of less importance, are out of disqualofication, even though they face very similar mental capacity.

키워드