피성년후견 및 피한정후견을 이유로 한 결격조항의 폐지

초록

The UN Committee of the Convention on the Rights of Persons with Disabilities recommends based on Article 12 of that Convention that adult guardianship, whatsoever, should be immediately abolished and, instead, supported decision making schemes should be introduced. From the perspectives of contracting states, to implement that recommendation must incur lots of social expenditure. Since any kind of authority to represent the persons with impairments to decision making abilities, irrespective of statutory representative power or contractual representative power, is indispensable so as to relieve the concerns which can be raised by the parties to the decision makings of those persons, to find any other alternative to representative power and authority for those persons is nearly impossible in reality. In other words, persons with incapacity cannot but resort to statutory representative power and authority unless they conferred lasting power of attorney on others in advance. That being said, those persons who resort to adult guardianship, especially full and limited guardianship, shall be exposed to more than 300 disqualification provisions, which deprive persons under guardianship of rights, licences and legal status, or which prohibit them running many kinds of businesses, or which expel them from employment relationship. This paper analyses that the purpose of disqualification provisions, protection of the third parties who can contact the persons under guardianship, has nothing to do with the effects of those disqualification clauses, namely deprivation of rights, licences and legal status or the prohibit of businesses and employment. Subsequently, this paper argues that the immediate abolition of those disqualification provisions is unlikely to cause any inconvenience and malice to the society, compared to the situation where disqualification provisions remain valid, and that the abolition of those disqualification clauses can contribute the improvement of life quality of persons under guardianship.

키워드