대리제도로서의 성년후견 — 국가공무원법 제69조제1호 중 제33조제1호 관련 규정의 위헌결정의 의의 —

초록

The Korean Constitutional Court ruled in its decision on December 22, 2022 (2020HeonGa8) that the State Public Officials Act, Article 69 subparagraph 1 in conjunction with Article 33, which requires public officials under full guardianship to retire automatically, was unconstitutional. With this decision, whereas the state shall order a public official under full guardianship a leave of absence, then ex officio dismissal after a leave of absence, from the perspective of the said public official, he or she has the option of applying for nursing care benefits, sick leave, a leave of absence, retirement, or honorable retirement. In order for the said official to exercise this right of choice, his or her guardian has the power to make the relevant decision on his or her behalf. This paper is based on the research from the perspective that the above mentioned Constitutional Court decision signaled the transition from the role of guardians as the controller and manager of the property and personal welfare care of persons under guardianship to that of representative in relation to the management by the persons under guardianship of their property and personal welfare care, This paper emphasizes that the purpose of the new adult guardianship system should be to promote the social participation of persons under guardianship with the assistance and representation of guardians, who make decisions on behalf od persons under guardianship even when they lack the capacity to make decisions. Based on the premise that the guardian's proper role is to be placed in ‘representation’, this paper argues as well that ordinary representation system, especially endurable power of attorney document should be improved to be effectively exercised, and that guardians’ duty in relation with their principals should be placed on the respect of their rights, will and preferences. From this perspective, For this purpose, the current adult guardianship should be revised. Lastly, this paper argues that it is necessary to treat public officials under guardianship equally with other public guardianship without guardianship by allowing their guardians to exercise the right to choose among medical benefits, leave of absence, retirement, or honorable retiremen before waiting for the state's disposition such as an order of leave or ex officio dismissal.

키워드