[한정후견개시] 재항고[각공2018상,209]
In a case where Gap sought revocation of the adjudication on commencement of limited guardianship and appointment of limited guardian for the reason that mental constraints lack of the ability to handle the affairs, the case holding that considering all the circumstances, it is reasonable to appoint a social welfare foundation Gap as a limited guardian and give Gap's right to consent to the juristic act, but the first instance court should revise the scope of the right to consent granted to the limited guardian, such as the scope of the right to consent granted by the limited guardian.
In a case where Gap sought revocation of judgment on the commencement of limited guardianship and appointment of limited guardian for reasons of lack of mental restraint, the case holding that Gap's limited guardianship should commence, and that Gap's right to representation should be restricted to the limited ward's right to representation and to give full consent to legal acts for the welfare of Gap, although it is reasonable, the court of the first instance to appoint a social welfare corporation as a limited guardian and give full consent to legal acts for the welfare of the limited ward and to the limited ward's right to representation for reasons of lack of capacity to manage affairs due to mental restraint, considering the following: Gap's mental appraisal of the first instance court shows that it is difficult to manage affairs due to his own decision and treatment necessary for others' assistance due to mental constraints; Byung's mental constraints; Byung is unable to predict his/her recovery of the principal in the case where sick and medical treatment fall short of capacity to manage affairs until now; Gap's current mental constraints is not sufficient to recognize the lack of capacity to manage affairs; Gap's right to representation should be restricted from the limited ward's right to consent to legal acts for reasons other than limited guardianship.
Articles 12, 13, 959-2, 959-3, and 959-4 of the Civil Act; Article 45-2(1) of the Family Litigation Act
The deceased Nonparty 1’s successor (Law Firm, Kim & Lee LLC, Attorneys Im-eng et al., Counsel for the plaintiff-appellant)
An intervenor;
The principal of the case (Law Firm Dongin, Attorneys Kim Su-soo et al., Counsel for defendant-appellant)
Seoul Family Court Decision 2016 Madan50702 dated January 24, 2017
1. Among adjudication on the first instance, the part of the scope of the right to representation of a limited guardian shall be changed as described in the attached Form of the right to representation of the limited guardian;
2. The appeal of this case is dismissed.
3. Costs of appeal shall be borne by the appellant;
1. Purport of claim
A limited guardian shall commence to the principal of the case. Non-party 1 (resident registration number omitted) (resident registration number omitted) shall be appointed as the limited guardian of the principal of the case.
2. Purport of appeal;
The first instance trial is revoked. The claim of this case is dismissed.
1. Jurisdiction and applicable law;
A. As to the instant case seeking the commencement of limited guardianship and appointment of a limited guardian for the principal of the instant case, the principal of the instant case is not a foreigner who has a domicile in the Republic of Korea, and there is no international jurisdiction in the court of the Republic of Korea, and there is no possibility that the Civil Code of the Republic of Korea is applicable as the governing law, and thus, the instant application
B. According to the records, the principal of the case lost his/her nationality in the Republic of Korea on June 17, 201 and around 2017, despite the fact that the foreigner registration of the principal of the case was cancelled, the principal of the case has been mainly residing in the Republic of Korea even after his/her loss of nationality (the principal of the case has not been 20 days or more in areas other than the Republic of Korea after his/her loss of nationality) and is residing in the Republic of Korea after his/her entry into the Republic of Korea on October 12, 2017. Accordingly, the principal of the case is a foreigner who has at least his/her domicile in the Republic of Korea. In addition, the principal of the case possesses property in the Republic of Korea, such as holding 1/2 shares in the land and the commercial building located in Mapo-gu Seoul Metropolitan Government ( Address 2 omitted), and constitutes a juristic act such as entering into a lease contract on the above commercial building, borrowing money from a financial institution, etc., which is recognized by the overall purport of the record and examination.
Therefore, with respect to this case seeking the commencement of limited guardianship and the appointment of a limited guardian for the principal of the case who has his domicile in the Republic of Korea, the court of the Republic of Korea has international jurisdiction pursuant to Article 48(2)3 of the Private International Act, and the Civil Code of the Republic of Korea is applied as the governing law, and there is no reason for the principal
2. Succession to the procedure of this case by the claimant
A. The principal of the case asserts to the effect that the deceased non-party 1 claimed the instant case, and that the deceased non-party 1 cannot succeed to the instant procedure as long as he/she died, the instant case was terminated due to the death of the claimant, and that even if not, the claimant who succeeded to the deceased non-party 1 did not change the interests of the principal of the case, and that he/she did not have the qualification and ability as the petitioner or limited guardian in light of the past history, etc.
B. Article 16 of the Family Litigation Act shall apply mutatis mutandis to the succession of the procedure in this case to the child of the principal of this case (Article 12(1) of the Civil Act), and the circumstance that the applicant has the capacity to request the procedure in this case as the child of the principal of this case (Article 12(1) of the Civil Act), or that there was a lack of capacity to request the procedure in this case, and that there was a lack of capacity to request the procedure in this case, and that there was a lack of capacity to request the procedure in this case, or that there was a difference between the principal of this case and the principal of this case. Thus, the claimant has legally succeeded to the deceased non-party 1 in this procedure (the claimant is not a limited guardian) (the claimant is not dissatisfied with the first instance trial that appointed the Mental Health Welfare Foundation that was established as a social welfare foundation as a limited guardian, and the subsequent mentioned above is reasonable, and thus the claimant has no capacity to request the procedure in this part as a limited guardian).
3. Commencement of limited guardianship and appointment, etc. of limited guardian;
A. The principal of the case asserts to the effect that the judgment of the first instance court should be revoked, since he did not lack the ability to handle his business and even if he was in such a state in the past, he has recovered all his ability.
B. The following circumstances recognized by the overall purport of the record and examination, namely, the principal of the case, in light of the fact that on April 15, 2016, the Samsungnam Hospital was diagnosed with one type of stimulative disorder, the principal of the case, which was conducted by the appraisal commission of the first instance court, was judged to be unable to perform his/her duties in his/her own decision and process necessary for the management of money due to the mental constraints caused by the stimulative disorder, and the principal of the case was judged to be able to perform his/her duties due to mental constraints, and to be unable to predict the recovery of the principal of the case, which lacks the proper response to the sick and treatment, and there is no meaningful material to deem that the principal of the case had improved the status of the principal of the case. Accordingly, the principal of the case cannot accept the principal of the case, which is able to perform his/her duties due to the present mental constraints.
On the other hand, limited guardianship should be commenced for the principal of the case, and it is reasonable that the first instance court appoints the Ulsan Mental Health Welfare Foundation as a social welfare foundation that can perform guardianship affairs in a neutral and objective standpoint for the principal of the case as a limited guardian for the principal of the case, and grants him/her the right to consent to the legal act of the principal of the case.
(c) However, as to whether the scope of the right of representation granted by the first instance court to a limited guardian is lawful or reasonable, it shall be determined ex officio.
Even if limited guardianship begins, limited guardianship is limited to acts separately determined by the Family Court to obtain consent from a limited guardian (However, from among acts determined to obtain consent, a limited ward has full capacity to act pursuant to the proviso to Article 13 (4) of the Civil Act with respect to legal acts necessary for daily life, such as purchase of daily necessities, and the price for which is not excessive. Although the right to consent and the right to representation is basically distinguishable and the purpose of such act is different, if a limited ward grants a right to representation to a limited guardian in the part where he/she has full capacity to act, then it is necessary to restrict his/her capacity to act again, and it would be unlawful to grant the right to representation regarding matters exceeding the scope of the right to consent granted by the court to the limited guardian (where it is necessary to grant the right to representation within the scope of his/her own capacity to a third party due to physical constraints, etc.), and to remove the right to representation from among the records and examinations of the case and the right to representation and sale of goods in accordance with attached Form 1 of the Criminal Act.
4. Conclusion
Therefore, the scope of the right to representation of a limited guardian among the judgment of the court of first instance shall be changed as stated in the attached Form 1, and other judgment of the court of first instance is justifiable. Therefore, the appeal of this case shall be dismissed and it is so decided as per Disposition.
[Attachment]
Judges Lee Do-hion (Presiding Judge)