Reform of adult guardian system in Korea and its backgrounds

초록

Characteristics of new adult guardian system In legislating the new system, guiding principles such as respect for the right of self-determination and the will of persons with impaired decision making ability, maximum utilization of remaining mental capacity, normalization and minimization of excessive intervention were proposed. Korea’s new adult guardian system gave up on the conversion to unilateralism with single protection type, instead considering the continuity with the traditional legal system, it maintained pluralism with three protection types. But it flexibly placed protection types and protective measures in these types. It attempted to get rid of problems regarding over-intervention in the protection with types. Firstly, statutory guardianship was reorganized into three categories. In preparation for constant guardian demand the traditional incompetency ? quasi-incompetency system was turned into full guardianship and limited guardianship. Also, specific guardianship for temporary, one-time guardian demand and contractual guardianship system based on one’s self-determination were newly established. The new adult guardianship system is an improved system to provide more flexible and elastic protection types and measures by alleviating problems such as uniform restriction on legal capacity to act and too comprehensive power of guardians. The new system can be appreciated in that it excludes the danger to infringe on the right to self-determination of persons with decision-making disabilities arising from excessive engagement. However, the new adult guardianship system maintains the old paradigm as it restricts capacity to act and focusing on substituted decision making. It is also criticized for failing to sufficiently reflect the new philosophy of the supported decision making.