[1] Meaning of “where it is deemed necessary to replace a guardian for the welfare of a ward” under Article 940 of the Civil Code, and whether both the management of property and the protection of personal affairs should be considered when determining the grounds for changing the grounds for changing the guardian (affirmative in principle)

[2] In a case where Gap filed a claim for replacement of an adult guardian with the ground for replacement of an adult guardian and the judgment of appointment of Eul as an adult guardian upon Gap's large-scale type Eul, upon Eul's request for the commencement of adult guardianship and appointment of Eul as Eul, which became final and conclusive in the above procedure, on the ground that Eul's child Byung who submitted the guardianship consent to the effect that " Eul becomes Eul" was unlawfully committed, such as taking away Eul's property and forging and submitting the guardianship consent to the above judgment, the case holding that the judgment below erred by misapprehending the legal principles as to the replacement of an adult guardian, on the ground that there was a ground for replacement of the adult guardian and the legal entity was more suitable for the adult guardian, and thus, the judgment below erred by misapprehending the legal principles as to the replacement of the adult guardian

[1] The Family Court may replace an adult guardian ex officio or at the request of a relative, etc. (Article 940 of the Civil Act). The requirements for the change are “where it is deemed necessary to replace the guardian for the welfare of the ward.”

Comprehensively taking into account the purport and purpose of the introduction of the adult guardianship system, the duties and scope of the adult guardian, the supervisory authority of the Family Court, etc., “where it is deemed necessary to replace the guardian for the welfare of the adult ward” means where the Family Court neglects the adult guardian’s duty of care as a good manager when comprehensively examines the performance of the adult guardian’s duties and there is an inappropriate reason to perform the guardian’s duties as a guardian. Furthermore, the duties of the adult guardian include not only the duties of the adult ward’s property management but also the duties of personal protection, and the duties of personal protection are important for the welfare of the adult ward, barring any special circumstance, in determining the adult guardian’s property management and both duties of personal protection shall be taken into consideration.

[2] In a case where Gap et al. was unable to move or communicate due to the outbreak of cerebrovascular, the adjudication was rendered and became final and conclusive upon Eul's request for the commencement of adult guardianship and appointment of Eul as an adult guardian, and Gap's child Byung who submitted the guardianship consent in the above adjudication procedure to the effect that " Eul et al. becomes an adult guardian" had committed an unlawful act, such as removing Eul's property and forging and submitting the guardianship consent after the above adjudication became final and conclusive, the case holding that the judgment below erred by misapprehending the legal principles as to the alteration of the adult guardian's property and the possibility that it would hinder the welfare of the ward since it is not appropriate for Gap et al. to perform his duties when examining Eul's property management and personal protection duties, and it is more appropriate for Gap et al. to accept the change of the adult guardian's property and the risk of changing the adult guardian's property without considering the circumstances where it is difficult for Eul to do so due to cerebrovascular, and it is more appropriate to consider the change of the adult guardian's property and other property.

[1] Article 940 of the Civil Code / [2] Article 940 of the Civil Code

Claimant

Intervenor (Law Firm Domestic and Foreign, Attorney Park Tae-sik, Counsel for the intervenor-appellant)

Principal of the case

Changwon District Court Order 2019B1038 dated June 18, 2020

The order of the court below is reversed, and the case is remanded to the Changwon District Court.

The grounds of reappeal are examined.

1. Criteria for appointment and replacement of an adult guardian;

(a) Standards for appointment of adult guardians and the supervision of the court;

(1) The purpose and purpose of introducing the adult guardianship system

The Civil Act amended by Act No. 10429, Mar. 7, 2011, as a human body with dignity, has abolished the existing system of incompetency and quasi-competence, and introduced the system of adult guardianship on July 1, 2013 so that a person with mental constraints may use the system of guardianship and lead his/her own life as a human body with dignity. The system of adult guardianship is implemented from July 1, 2013 by introducing the system of adult guardianship. The system of adult guardianship allows individual response depending on various circumstances of the people requiring the relaxation of the system of incompetency and quasi-competence under the Civil Act prior to the amendment. The basic concept of respect for his/her remaining value and remaining capacity is to ensure that the scope of guardianship can be individually determined, as well as the management of property, and can be widely assisted in the field of personal affairs, such as medical treatment, and even those without any mental constraints can use the system of guardianship in preparation for a weak situation with weak mental abilities (see, e.g., Constitutional Court en banc Decision 2018Hun-Ba1616).

2) The hearing and procedure of the court

In adjudication to commence adult guardianship, the Family Court shall appoint an adult guardian ex officio, and even if the existing adult guardian has become disqualified due to death, disqualification or any other cause, it shall appoint a new adult guardian ex officio or upon the request of the claimant (Articles 929 and 936(1) and (2) of the Civil Act). In appointing an adult guardian, the intention of the adult ward shall be respected and the case shall be taken into account other circumstances, including the health, living conditions, property status, occupation and experience of the person to be placed under adult guardianship, whether the person has an interest with the adult ward (where the adult guardian becomes a corporation, referring to the type and contents of the business, whether the corporation or the representative has an interest with the adult guardian), and a person who has no ground for disqualification for the guardian shall be appointed as an adult guardian (Article 937 of the same Act). The Family Court shall have a doctor on the mental condition of the person to be placed under adult guardianship (Article 45-2(1) and (3) of the Family Litigation Act, except in cases where other sufficient data exist, provide for the ward or adult ward.

(iii)the duties and scope of the appointed adult guardian and the court supervision;

The appointed adult guardian shall be the legal representative of the adult ward, may decide on the personal matters of the adult ward, and in managing the property and protecting the personal matters of the adult ward, he/she shall handle the affairs in a manner consistent with the ward's welfare, taking into consideration various circumstances, and respect the opinion of the adult ward unless it conflicts with the ward's welfare (Article 938, Article 947 of the

Even after an adult guardian is appointed, the Family Court may change the scope of the right of legal representation held by the adult guardian and the scope of the authority determined on the personal affairs of the adult ward (Article 938 of the same Act), upon request of the adult guardian, or ex officio or upon request of the adult ward, investigate the status of the adult ward’s property and order the guardian to take any measures necessary for performing his/her duties such as the management of property (Article 954 of the same Act), and if deemed necessary, additionally appoint the adult guardian ex officio or upon request (Article 936(3)

(b) Criteria for replacing an adult guardian;

The Family Court may replace an adult guardian ex officio or at the request of a relative, etc. (Article 940 of the same Act). The requirements for the change are "where it is deemed necessary to replace the guardian for the welfare of the adult ward".

Comprehensively taking into account the purport and purpose of the introduction of the adult guardianship system, the duties and scope of the adult guardian, the supervisory authority of the Family Court, etc., “where it is deemed necessary to replace the guardian for the welfare of the adult ward” means where the Family Court neglects the adult guardian’s duty of care as a good manager when comprehensively examines the performance of the adult guardian’s duties, and there is an inappropriate reason for the guardian to perform his/her duties as a guardian. Furthermore, the duties of the adult guardian include not only the duties of the adult ward’s property management but also the duties of personal protection, and the duties of personal protection are important for the welfare of the ward, barring any special circumstance, in determining the adult guardian, all the aspects of his/her property management and both duties of personal protection should be taken into consideration. The reasons are as follows.

1) The Family Court shall appoint an adult guardian with the commencement of adult guardianship. The process requires the procedure of appraisal of mental state, hearing of statements, etc. according to strict requirements, such as respect of the adult ward’s doctor, health, living conditions of the adult ward, consideration of various circumstances, such as the status of the adult ward, and the absence of grounds for disqualification for the guardian. Any objection thereto may be raised through an immediate appeal against the commencement of adult guardianship trial (Article 43 of the Family Litigation Act and Article 36(1)1(a) of the Rules of Family Litigation). Any change in the adult guardian shall be recognized where the adult guardian is not suitable for performing his/her duties in the guardianship duties actually performed after the decision of appointment finalized in accordance with such requirements and procedures, and shall not be changed by any interested party who objects to the appointment of the guardian as a substitute for appeal procedures.

2) If an adult guardian appointed in accordance with the above requirements and procedures is replaced by the court to dismiss the existing adult guardian, it is recognized that the reason for disqualification for the guardian has become a guardian and thereby would be at a disadvantage without a guardian again (Article 937 subparag. 6 of the

3) In particular, whether an adult guardian should be an adult guardian, and whether an adult guardian is properly performing his/her duties, there are many cases of disputes or conflicts among the family members of the adult ward. Thus, it is not readily concluded that there is a ground to replace the guardian solely on the ground that such disputes or conflicts arise between such family members, but it is not readily concluded that such conflicts between such family members may interfere with the welfare of the ward under adult guardianship, and specific circumstances should be recognized that such conflicts may be resolved or alleviated by changing the adult guardian, thereby promoting

4) Even in cases where a somewhat inappropriate reason for performing the duties of an adult guardian arises or is likely to arise, the court may seek the welfare of the ward by taking measures to change the scope of the right of legal representation granted by the adult guardian and the scope of the authority to determine the status of the ward.

5) Meanwhile, the Civil Act separately provides for the appointment and change of an adult guardian, unlike voluntary guardian, and thus, the change of an adult guardian is legally characterized by the dismissal of the existing adult guardian and the appointment of a new adult guardian. The Civil Act, similar to an adult guardian, provides for the ground for removal of a voluntary guardian (Article 959-17(2)), where an executor commits a serious misconduct in performing another’s business or an inappropriate reason for performing his/her duties, and where an executor neglects his/her duties or is not appropriate (Article 1106). In light of the purport of the absentee property management system, the Supreme Court held that the replacement of an administrator of an inherited property without investigation and degree is extremely unlawful, even if there are special circumstances to deem that there is a situation where an administrator of an inherited property should be replaced, such as where there is no particular reason to view that the existing administrator of an inherited property should be replaced, and that there is no reasonable ground for removal between the executor of a will, such as where it would be 10 square meters or more (see, e.g., Supreme Court Decision 20100 square meters).

2. Judgment of this case

A. The lower court determined that it is reasonable for the re-appellant to replace the guardian to the Korea Adult Guardianship Support Center, an incorporated association, for the welfare of the principal of this case, based on the following circumstances: (a) after the occurrence of cerebral blood from the person under adult guardianship, the conflict between the petitioner and his/her family members, including the re-appellant, over the property, etc. of the principal of this case continues to exist; and (b) if such conflict continues to exist in the future, the possibility of causing damage or danger to the principal of this case’s personal affairs and property is high; and (c) the petitioner expressed his/her opinion that he/she would appoint an objective third party as

B. However, we cannot accept the judgment of the court below for the following reasons.

1) According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

A) The process that the Re-Appellant was appointed as an adult guardian

When the principal of the case (Nam, 1959 birth) was unable to move or communicate with the principal due to the outbreak of cerebrovascular, the re-appellant who is a large amount of punishment filed a petition for adjudication on the commencement of adult guardianship for the principal of the case. Accordingly, on April 3, 2017, the adjudication on the commencement of adult guardianship for the principal of the case and the appointment of the re-appellant as an adult guardian was rendered, and on April 25, 2017, the adjudication became final and conclusive on April 25, 2017. In the aforementioned adjudication procedure, the non-applicant 1 (year 23 years old at that time) and the claimant (age 21 years old at that time) submitted to the Family Court a consent to the effect that the re-appellant is an adult guardian.

B) Details of the instant amendment claim

On April 28, 2017, immediately after the adjudication on the commencement of adult guardianship became final and conclusive, the claimant claimed for the change of this case on April 28, 2017, and argued that the re-appellant and the re-appellant’s non-appellant’s son Nonparty 2 et al. committed an unlawful act, such as taking away the property of the principal of the case and forging and submitting a written consent for guardianship. However, with respect to the case for which the claimant filed a complaint against the non-appellant 2 for the foregoing reason, there was a non-prosecution disposition by the prosecutor’s office around December 2017. Meanwhile, there is no circumstance to deem that the claimant was living with the principal of the case and look at the principal of the case and at least was protecting his personal identity (the claimant appears to have resided differently from the principal of the case from September 2016).

C) The process and determination of the first instance court after the instant claim was filed

The first instance court ordered the re-appellant to participate in the procedure, and confirmed records of adult guardianship supervision cases and guardianship office reports, etc. by the first half of 2019, dismissed the re-appellant's request for change on the ground that it is difficult to view that the necessity of change of adult guardian is sufficiently explained after this hearing was conducted. At the same time, it ordered the court to obtain permission for the exercise of the right of representation regarding the act of borrowing money as it is necessary to change the scope of the right of legal representation of adult guardian, disposal of important property such as real estate, etc.

2) Examining the above circumstances in light of the legal principles as seen earlier, the lower court’s determination that there is a ground to replace a guardian or that it is reasonable to replace a guardian as an incorporated adult guardianship support center for the following reasons is difficult to accept.

A) The lower court’s determination that there exists a conflict between the families surrounding the instant principal’s property, etc. and the possibility of damage or danger to the principal’s personal property is merely a vague trend or presumption, and it is difficult to find specific circumstances to deem that it is inappropriate for the re-appellant to perform his/her duties when examining his/her property management and his/her duties to protect his/her personal property.

B) The circumstance that the claimant and the re-appellant who opposed to who is to become an adult guardian is not dissatisfied with changing the adult guardian to a third party when the court below held that it was inappropriate for the re-appellant to perform his/her duties as a guardian, i.e., whether the ground for change exists or not, and on the other hand, it is difficult to conclude that the Korea Adult Guardianship Support Center, an incorporated association, from the perspective of the duty of personal protection, constitutes an adult guardian more suitable than the re-appellant, considering the circumstances where it is difficult for the principal in this case to perform his/her duties as a guardian.

C) The instant claim is a claim for a change immediately after the guardian was appointed in the procedure of a guardianship commencement trial. Unless there are other special circumstances, it is highly likely that the instant claim would dance the examination in the existing procedure of a guardianship commencement trial, barring any special circumstance

3) Nevertheless, the court below did not fully examine whether there are specific circumstances that make it inappropriate for the re-appellant to perform his/her duties when examining both his/her property management and personal protection duties, and whether the appointment of the existing adult guardian would be prejudicial to the welfare of the ward, and whether taking other dispositions without maintaining his/her appointment of the adult guardian would rather correspond to the welfare of the ward. The court below decided that there are grounds for change of the adult guardian on the sole basis of the reasons in its holding, and that the Korea Adult Guardianship Support Center, an incorporated association, was more suitable for the adult guardian than the re-appellant. Thus, the court below erred by misapprehending the legal principles on change of the adult guardian and failing to exhaust all necessary deliberations, which affected the decision.

3. Conclusion

The order of the court below is reversed without examining the remaining grounds for reappeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)