발달장애인의 자기결정권과 국가의 기본권 보호의무 -｢발달장애인 권리보장 및 지원에 관한 법률」에 대한 비판적 검토를 중심으로- = Self-Determination of People with Developmental Disabilities and the State’s Duty to Protect Fundamental Rights

다국어 초록 (Multilingual Abstract)

Article 10 of the Constitution of the Republic of Korea declares human dignity, the worth of individuals, and the right to pursue happiness, which are specifically manifested as the right to self-determination for persons with developmental disabilities to shape their own lives. The Act on Guarantee of Rights of and Support for Persons with Developmental Disabilities (hereinafter “the Developmental Disabilities Act”), enacted in 2014, represented significant legislative progress by redefining individuals with developmental disabilities as proactive “subjects of rights” and adopting a “social model” that views disability as a product of interaction with the social environment . However, a decade after its enactment, the practical protection of fundamental rights-including suffrage, community integration, and physical liberty-remains insufficient from the perspective of the state's duty to protect fundamental rights.
Primarily, to effectively implement the state's duty to protect fundamental rights, the Individual Support Plan (ISP) under Article 19 must transition beyond mere service linkage into a substantive scheme backed by specific resource allocation. Nevertheless, the fact that the current benefit system still largely relies on administrative discretion, failing to secure the substantive nature of the right to benefits, remains a critical legislative task. Furthermore, the normative contradiction between the guarantee of self-determination in Article 8 and the support for the adult guardianship system in Article 9 must be addressed. There is also an urgent need to rectify the absence of substantive requirements and procedural control mechanisms for physical interventions in response to "challenging behaviors".
To bridge these legal gaps, independent “supported decision-making” procedures distinct from the adult guardianship system under the Civil Act should be instituted. Additionally, the requirements and due process for physical interventions must be explicitly codified at the legislative level. Ultimately, by linking the ISP with individualized budgets to strengthen its normative power, a systemic foundation must be solidified to ensure that persons with developmental disabilities are recognized as equal and sovereign members of the community.