성년후견인의 민법 제755조의 책임 -그 정당성에 대한 비판적 검토- = The Guardian`s Liability in Accordance with Article 755 of the Korean Civil Code; A Critical Analysis on its Justification Grounds

다국어 초록 (Multilingual Abstract)

The current Article 947 of the Korean Civil Code provides that a full guardian shall take a ward`s personal care and discharge his or her general and daily duty for a ward with due diligence to the extent that the full guardian is able to admit the ward into a restricted private facility or a psychiatry hospital with a permission of a family court. Such a power mentioned just before is one example of revealing how burdensome his or her duty and how enormous in turn his or her power is. On the other hand, Article 755 of the Korean Civil Code provides that a person with statutory duty of supervision of a tortfeasor who committed a tort in unsound mind is liable to a victim for losses caused by a unsound tortfeasor; an exemplary person with statutory duty of supervision of an adult tortfeasor is supposed to be a full guardian. A full guardian`s liability in accordance with Article 755 is based on his or her duty to take personal care of a ward. A guardian`s responsibility and corresponding power have often led to human right issue raising cases that a ward is excluded from the societies and even forced to be admitted in a facility where his or her liberty is restricted and deprived. This paper deals with an issue of whether or not a guardian will be interpreted to be still liable, pursuant to Article 755, to a victim for losses caused by his or her ward under the new adult guardianship law coming into force in July 2013. can be Unlike under the legal incapacity System, this paper indicates that a guardian under the new adult guardianship law is not responsible for personal care of a ward, whereas personal care of a ward is up to the ward himself or herself as long as he or she has the mental capacity to do so. In a case where he or she loses that capacity, his or her personal care is supposed to be carried out by third parties with his or her property, money of relatives who is responsible, or social welfare services; in such a case, the normal role of a guardian will be to arrange for the carrying out by third parties of a ward`s personal care. To construct a guardian`s role in such a way can alleviate his or her burden of care, so far shared within family boundary, and it is possible in the near future for a ward to live in a human rights respecting social environment as its member. This paper argues that Article 755 of the Korean Civil Code should be deleted to the extent that it has something to do with a guardian`s responsibility; it can contributes to make clear the legislative purpose of the new adult guardianship and to declare Korean society`s resolution to respect human rights to the outside world as well as to the national audience. This paper compares Korean guardian`s liability in accordance with Article 755 with foreign countries` laws to support such conclusions.