@article{ART002876056},
author={JINAH PARK and Oh, Ho-Cheol},
title={A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -},
journal={Legal Theory & Practice Review},
issn={2288-1840},
year={2022},
volume={10},
number={3},
pages={33-59}
TY - JOUR
AU - JINAH PARK
AU - Oh, Ho-Cheol
TI - A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -
JO - Legal Theory & Practice Review
PY - 2022
VL - 10
IS - 3
PB - The Korea Society for Legal Theory and Practice Inc.
SP - 33
EP - 59
SN - 2288-1840
AB - The previous sentence of incompetency and quasi-incompetent system in South Korean civil law was criticized for not considering the decision-making ability of the ward and being a system that deprives or restricts human behavior on a uniform basis. After a lengthy discussion on the problems of the old system, on July 1st, 2013, an adult guardianship system totally different from the earlier one was introduced to secure the self-decision making and human rights of the ward, based on the principle of the utilization of one's remaining ability, respect for opinions, and normalization. However, before this act came into force, South Korea joined and ratified the UN Convention on the Rights of Persons with Disabilities in 2008. Article 12 of this convention declares that persons with disabilities have the 「legal capacity」 which means that persons with disabilities have the legal capacity or qualifications to fully and effectively participate in social activities, including legal and agentive capacity on an equal basis with others in all areas of life. This raised problems in the South Korean adult guardianship system and its compatibility. In other words, while it shows improvement in that it secures self-determination and respects human rights compared to the previous sentence of incompetency and quasi-incompetent system, the problems remain as the structure in which someone decides on behalf of the ward has unchanged a lot.
In this context, recently, the legal principle of the 「support for self-determination」, which assures active support for the will of the ward, breaking away from the existing system in which the guardian decides on behalf of the ward, has emerged in the United States in terms of the guardianship system. Although the United States did not join the UN Convention on the Rights of Persons with Disabilities, the United States has made groundbreaking judgements in the Jenny Hatch case and Dameris L case based on it, forming the principle of self-determination as a less restrictive alternative.
The principle of self-determination assists one's decision-making in which he or she understands the nature and consequences of a decision on one's identity and property so that he or she can make their own decision, and supports the decision-making in case the decision already made matches one's will. It has appeared as a law in several states, and many scholars are making theories supporting this. In particular, the fact that 「The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA)」 in the United States prescribes support for self-determination as a less restrictive alternative to the guardian system, and 「The Self-Determination Support Contract Act」 works as a less prohibitory act, stipulating a contract conclusion through self-determination, is implications for the Adult Guardianship system in South Korea.
KW - adult guardianship system;UN Convention on the Rights of Persons with Disabilities;legal capacity;support for self-determination;utilization of remaining capacity.
DO -
UR -
ER -
JINAH PARK and Oh, Ho-Cheol. (2022). A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -. Legal Theory & Practice Review, 10(3), 33-59.
JINAH PARK and Oh, Ho-Cheol. 2022, "A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -", Legal Theory & Practice Review, vol.10, no.3 pp.33-59.
JINAH PARK, Oh, Ho-Cheol "A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -" Legal Theory & Practice Review 10.3 pp.33-59 (2022) : 33.
JINAH PARK, Oh, Ho-Cheol. A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -. 2022; 10(3), 33-59.
JINAH PARK and Oh, Ho-Cheol. "A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -" Legal Theory & Practice Review 10, no.3 (2022) : 33-59.
JINAH PARK; Oh, Ho-Cheol. A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -. Legal Theory & Practice Review, 10(3), 33-59.
JINAH PARK; Oh, Ho-Cheol. A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -. Legal Theory & Practice Review. 2022; 10(3) 33-59.
JINAH PARK, Oh, Ho-Cheol. A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -. 2022; 10(3), 33-59.
JINAH PARK and Oh, Ho-Cheol. "A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -" Legal Theory & Practice Review 10, no.3 (2022) : 33-59.
