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The main contents of the German amended Adult Guardianship Act

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2023, 11(1), pp.421-439
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : January 31, 2023
  • Accepted : February 25, 2023
  • Published : February 28, 2023

Oh, Ho-Cheol 1

1화성의과학대학교

Accredited

ABSTRACT

In recent years, the adult guardianship act globally flows around implementing the UN Convention on the Rights of Persons with Disabilities. In particular, under Article 12 of the UN Convention on the Rights of Persons with Disabilities, which stipulates that person with disabilities can exercise their full legal rights without being discriminated against on the grounds of disability, the paradigm of the adult guardianship system has shifted from decision-making substitution to decision-making support. If the adult guardianship systems in countries that signed the UN Convention on the Rights of Persons with Disabilities are not equipped or are incompletely equipped with the decision-making support system, they had to make revisions in accordance with the implementation requirements of the UN Convention on the Rights of Persons with Disabilities. The UK, a representative of the Anglo-American Legal System, and Japan are creating a new adult guardianship system for decision-making support. South Korea is also keeping in line with this global trend of revision of adult guardianship systems to decision-making support. South Korea's adult guardianship system also states that the self-determination of adult wards shall be respected in the adult ward protection, while it was developed in the way that adult guardians substitute the decision-making of the adult ward. Therefore, as Korea is also a country that signed the UN Convention on the Rights of Persons with Disabilities, the adult guardianship system of South Korea should also inevitably convert into a decision-making support system, just like other countries. If so, how will the adult guardianship system be revised? Regarding this, Germany, which is known as the mother of Korean law, recently revised the adult guardianship system, which came to effect on January 1, 2023. It would also be helpful in revising the adult guardianship system in Korea with reference to the revised civil law of German. This paper did not look at the entire revised German Civil Code, focused on Article 1821 of the German Civil Code, which is the central norm of this revision, and which clearly demonstrates the basic principles, the legislators' thought, and the direction of revision of adult guardianship. As a result, the revised German Civil Code explicitly requires the adult guardian to confirm the wishes of their adult wards, and therefore the adult guardianship system has fully transformed into a decision-making support system from the decision-making substitution.

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