실질적 자기결정권 실현수단인 후견계약제도의 활성화에 관한 연구

• 영문명: A Study on the Activation of guardianship contract system as a means of realizing self-determination
• 발행기관: 충북대학교 법학연구소
• 저자명: 박득배(Park, Deukbae)
• 간행물 정보: 『법학연구』第28卷 第1號, 333~359쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

The development of guardianship contracts is a global trend. A guardian contract must be an autonomous contract. From the viewpoint of respect for self-determination, if a person can conclude a guardian contract based on his / her trust and confidence, and determine the secretariat to be handled by a guardian, the criteria and method of handling the guardian, and grant the necessary authority, Even when lost, we will be able to continue our self-determined life as a member of society. It is important for the guardian contract to confirm and realize his / her doctor because he has the basic idea to utilize the residual ability and to respect his own opinion as much as possible. However, it is not an exaggeration to say that the content of the guardianship contract is not limited to the property management but may also include the protection of personal property. Therefore, the meaning of autonomy should be emphasized in order to preserve the realization of the self -determination right by foreseeing the lack of decision - making ability which may occur in the future, and to implement the guardian contract. The effect of a custodial contract is a state of lack of decision-making capacity, that is, a state requiring protection, and it is necessary to control whether the self-determination of the party is realized as intended. In this regard, the Civil Code has legalized the arbitrator as a mandatory institution, and the family of the guardian deprived of the qualification. In the case of the guardianship contract, there is a case in which the guardianship contract can not be enacted because the guardianship contract is concluded by the fair deed, but the doctor. In the case of a guardian contract in which a contract is executed under the condition that the decision-making ability of the individual is insufficient, the guardian is entrusted with the realization of the contract entirely, It will be necessary to introduce the law of faithfulness. However, since the procedural justice can not be ignored even by the necessity, it is necessary to legislate the strengthening of the state s duty to secure the legal stability as well as the concrete validity. In addition, current civil law does not explicitly prescribe decision support. Nonetheless, the role of any guardian in a guardianship agreement needs to be reinterpreted to ensure consistency with the Convention on the Rights of Persons with Disabilities. In other words, Article 9, Paragraph 4, Article 959 of the Civil Code stipulates that family courts, arbitrary guardians, arbitrary guardians, and others must respect their own utmost respect when carrying out and operating guardianship contracts. It is an obligation to realize the respect of Therefore, even in the case of decision-making agency, it is not the best interest in the objective sense, but the guardian contract should be implemented and operated through the best interpretation of the will of the ward and the line in the guardian contract. Ultimately, life as a human being is meaningful to realize his own thoughts and values and to enjoy the process in the frame of law. A custodial contract must fulfill its role as a legal means to realize the value of this life, the self-determination.

목차

Ⅰ. 글을 시작하며

Ⅱ. 후견계약과 유엔장애인권리협약과의 정합성

Ⅲ. 후견계약제도의 특징

Ⅳ. 후견계약제도의 활성화

Ⅴ. 글을 끝내며

키워드

후견계약제도(The Guardianship Contracts System) 자기결정권(Self Determination) 사전의사지시서(Advance Medical Directives) 유엔장애인권리협약(Implementation of the UN convention on the Rights of Persons with Disabilities) Notary Document 절차보장(Procedural Guarantee)