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A New Approach to the Voluntary Guardianship System

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2025, 13(1), pp.49~81
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : February 3, 2025
  • Accepted : February 20, 2025
  • Published : February 28, 2025

Oh, Ho-Cheol 1

1화성의과학대학교

Accredited

ABSTRACT

Recently, the Republic of Korea has been struggling to solve the low birth rate and aging population. The whole society is aging at an alarming level. Most predictions show that Korea will become a super-aging society in 2025. As a result, one of the numerous social problems of such a society is becoming real, as the proportion of prospective dementia patients is gradually increasing. One precaution against such phenomena is the New Adult Guardianship System, which will become part of Korea's civil law on July 1, 2013. The New Adult Guardianship System is a system in which a guardian is appointed to an adult who needs help with affairs due to illness, disability, old age, and other reasons through a family court decision or guardianship contract so that the guardian can manage the property and protect the ward. The former is called statutory guardianship, and the latter is called voluntary guardianship. Voluntary guardianship is a system in which an individual enters a voluntary guardianship contract in preparation for one's future decline in judgemental ability, and once the judgemental ability declines, the individual designates a voluntary guardian supervisor, and the voluntary guardianship contract arises. When it was initially introduced, this system was viewed as the most aligned with the principle of "respect for the right to self-determination," a key ideology of the new adult guardianship framework, and was anticipated to see widespread adoption. However, contrary to such predictions, the utilization rate stayed low, and even when a voluntary guardianship contract was made, the designation of the advisory guardian supervisor, which is a requirement for the contract to take effect, was not applied, thereby causing a gap in the protection of the individual. There are many reasons why people do not apply for a voluntary guardian supervisor. For example, when the guardian contract holder is unaware of the fact that his or her judgment ability has declined; where the voluntary guardian contract has been concluded, and the voluntary guardian is managing the property and protecting the contract holder, but the contract holder is avoiding the designation of a voluntary guardian supervisor; where the individual is living alone or has children who are in a difficult situation to take care of him or her so the individual is unable to appropriately appoint the voluntary guardian supervisor even when his or her judgment ability has declined. In terms of the voluntary guardianship system, Japan has prepared an "observation contract" in order to address the problems pointed out above as a continuous support. Here, an observation contract is a contract whereby, after concluding a voluntary guardianship contract, the person makes regular visits or contacts to understand the person's life or health condition so that the voluntary guardianship contract can take effect at an appropriate time. Of course, this causes certain costs. However, if this system can fill the gap in one's protection, it is worth considering. To this end, this paper summarizes the current issues regarding the voluntary guardianship system in Korea and Japan and examines the content of the observation contract system as a solution to the problems of the voluntary guardianship system.

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