成年後見制度에 關한 硏究 : 立法論的 提案을 中心으로 = (A) study on the system of care and control

다국어 초록 (Multilingual Abstract)

Many adults now survive through the upper age bracket. As individuals advance from one decade to the next, capacity, either physical or mental or both, tend to diminish. Furthermore, those in the oldest age brackets are less likely to have family members or friends who might give enough informal help to avoid the necessity for legal procedures. Their natural protectors may have died, moved away or themselves reached an age where they cannot carry this kind of responsibility.
Those are serious problems in the 21st century. They have been considered in public law as a field of social welfare. But it became a serious one in private law as well. Korean Civil Law has a support system and an ability system relating to elderly people. However, only a mental except minors was considered as an object in these systems. So, elderly people have been discarded.
There are human beings who have mental ability but can not do everyday affairs because of their physical defects and who have incomplete mental ability. How can we help them? Our ability system has regarded them as incapacity. But, that is extremely uniform.
This study is designed to meet the needs of growing human beings who have mental ability but can not do everyday affairs because of their physical defects and who have incomplete mental ability, especially Elderly People, for legal advice and assistance on a range of personal, social and financial issues, It brings together a number of topics which have importance in the lives of older people.
As with any section of society, it is impossible to say that all members of that group will have the same or similar needs. It can be argued that old age is predominantly a social construction, based upon society's views of what older people should do. Certainly retirement can be viewed in this way, less an individual choice than an artificial shortening of the working life. This study therefore seeks to take a developmental view of old age and incomplete mental ability, and tries to avoid a stereotypical view of the older person. "Old age" itself may cover a span of 30 years or more and includes a wide range of interests, abilities and needs.
In researching the system of Care and Control(Betreuung), the major obstacle is that there is no(or few) discrete body of law relating to elderly people as there is no distinct legal status of old age. This means that there are bound to be gags in provision which leave some vulnerable people unprotected. At the same time, there is an increasing emphasis on elderly people as actors rather than passive recipients of legal acts. The protective and enabling functions of the law are thus both relevant to the needs of elderly people.
Many other countries such as Germany, France, Austria revised recently their ability systems for elderly people and United Kingdom revised the law of agency for them.
In this paper, the author compares those systems and analyze our ability system in Civil Law. And finally suggests a model of Care and Control System. It is as followings;
Chapter one, Introduction
Chapter two, Incapacity system in Civil Law and systems of protecting elderly people
Chapter three, A legislation in other countries
Chapter four, A system of Care and Control(Betreuung) and protecting elderly people
Chapter five, A legislative suggestion
Chapter six, Conclusion
The most important things in my study are adopting a new concept of ability.
First, Respecting the surviving ability of elderly people. It is a problem on the right of self-determination given by Constitutional Law.
The restriction of an ability is minimized as much as possible, and it should be limited in exceptional case.
Secondly, Considering the surviving ability of elderly people relatively.
The concept of competency should be considered relatively. Competency means the ability demanded generally in legal act. But, it should not be universally applicable in Care and Control(Betreuung).
Thirdly, Taking a serious view of normalization.
Normalization means that elderly people could live their life as usual in their community.
The author thinks our ability system and Guardianship in Civil Law should be revised sooner or later, and suggests that we make the system of Care and Control in Civil Law under considering the above concepts.

목차 (Table of Contents)

• 目次 = ⅰ
• 第一章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圓 및 方法 = 5
• 第二章 現行法上 行爲無能力制度와 高齡者保護制度 = 7
• 第1節 序 = 7
• 第2節 行爲無能力制度 = 9
• Ⅰ. 限定治産制度 = 9
• Ⅱ. 禁治産制度 = 11
• 第3節 後見制度 및 扶養制度 = 12
• Ⅰ. 後見制度 = 12
• Ⅱ. 扶養制度 = 20
• 第4節 障碍人福祉法 및 老人福祉法上의 高齡者保護 = 23
• Ⅰ. 障碍人福祉法 = 23
• Ⅱ. 老人福祉法 = 26
• 第5節 現行民法上 制度의 問題點 = 29
• Ⅰ. 行爲無能力制度의 要件 · 節次 · 效果의 間題 = 29
• Ⅱ. 後見人에 관한 問題 = 31
• 第6節 小結 = 32
• 第三章 外國의 立法側 = 34
• 第1節 獨逸 = 35
• Ⅰ. 舊制度의 槪觀 = 35
• Ⅱ. 改正法의 槪要 = 42
• 第2節 英國 = 73
• Ⅰ. 舊制度의 改革의 必要性 = 73
• Ⅱ. 代理法의 修正 = 74
• Ⅲ. 持縯的代理權授與法의 槪要 = 75
• Ⅳ. 施行上의 諸問題 = 80
• Ⅴ. 法律委員會의 提言 = 85
• 第3訓 美國 = 91
• Ⅰ. 沿革 = 92
• Ⅱ. 美國에 있어서 後見制度의 種類 = 100
• Ⅲ. 團體後見制度(Group Guardianship) = 107
• Ⅳ. 公後見制度(Public Guardianship) = 108
• Ⅴ. 非營利法人後見制度(Nonprofit Corporate Guardianship) = 110
• Ⅵ. 美國의 後見節次에 있어서 法의 適正節次의 具體化 = 111
• Ⅶ. 部分的으로 後見制度에 대신할 수 있는 諦制度(Alternatives to Guardianship) = 113
• 第3節 프랑스 = 118
• Ⅰ. 舊制度의 槪要와 問題點 = 119
• Ⅱ. 成年者保護制度上의 諸原則 = 125
• Ⅲ. 新成年者保護法 = 128
• 第4節 日本 = 143
• Ⅰ. 禁治産者 = 144
• Ⅱ. 準禁治産者 = 145
• Ⅲ. 現狀과 問題點 = 148
• Ⅳ. 高齡社會對策基本法 = 153
• Ⅴ. 成年後見問題硏究會告書 = 154
• 第四章 成年後見制度와 高齡者保護 = 158
• 第1節 高齡者保護와 行爲無能力制度의 限界 = 161
• Ⅰ. 事實的 契約關係理論 = 161
• Ⅱ. 被保護成年者의 必需品契約 = 163
• 第2節 消費者로서의 高齡者 = 169
• Ⅰ. 消費者로서의 特質 = 169
• Ⅱ. 高齡化에 隨伴하는 危險 = 170
• Ⅲ. 高齡者의 個體差異 = 171
• 第3節 高齡者와 去來法上의 保護 = 172
• Ⅰ. 被保護成者制度와 去來安全 = 172
• Ⅱ. 高齡者와 銀行去來 = 176
• Ⅲ. 消費者保護法에 있어서 高齡者의 保護 = 183
• 第五章 立法論的 提案 = 185
• 第1節 現行法上 成年後見法制 整備에 있어서의 問題點 = 186
• Ⅰ. 立法의 方法論 = 186
• Ⅱ. 一元論과 多元論 = 186
• Ⅲ. 公示의 問題 = 188
• 第2節 行爲無能力制度 및 後見制度의 整備 = 189
• Ⅰ. 行爲無能力制度의 整備 = 189
• Ⅱ. 成年後見 = 191
• Ⅲ. 事前的 措置 = 211
• 第六章 結論 = 217
• 〈參考文獻〉 = 222
• ABSTRACT = 235