(영문) 대법원 2021.6.10. 2020스596 결정 | 리걸엔진

1. The Civil Act separates adult guardianship and limited guardianship and determines the commencement requirements, claimant, procedure and effect individually.

Adult guardianship begins with respect to ‘persons who lack the ability to handle affairs due to mental constraints due to diseases, disabilities, old age or other causes(Article 9(1)), and who lack the ability to perform affairs due to mental constraints due to diseases, disabilities, old age or other causes(Article 12(1)). Among the requirements for adult guardianship and limited guardianship requirements, ‘mental constraints due to diseases, disabilities, old age or other causes' are the same, and there is no clear distinction between the two.

In most cases, "the principal, spouse, relative within the fourth degree of guardianship, guardian of a minor, supervisor of guardianship for a minor, supervisor of limited guardianship, supervisor of specific guardianship, specific supervisor of specific guardianship, prosecutor or head of local government," who is the claimant for limited guardianship (Article 9 (1)) and "the principal, spouse, relative within the fourth degree of relationship, guardian of a minor, supervisor of guardianship for a minor, supervisor of adult guardianship, guardian of adult guardianship, supervisor of specific guardianship, specific supervisor of specific guardianship, prosecutor or head of local government" (Article 12 (1)), who is the claimant for adult guardianship, is also identical, but the limited guardian or supervisor of limited guardianship can file a claim for commencement of adult guardianship, and the guardian or supervisor of adult guardianship can only

In the event of commencement of adult guardianship, legal acts of an adult ward can be cancelled in principle (see Article 10(1)), while, in the event of commencement of limited guardianship, a limited ward can perform legal acts effectively, and exceptionally, the Family Court may limit the capacity of the limited ward to perform legal acts (see Article 13(1)).

Proceedings for adjudication on adult guardianship or limited guardianship are family non-litigation cases prescribed in Article 2(1)2(a) of the Family Litigation Act, and the Family Court may decide on whether to commence the proceedings on the basis of the principal’s intent from a guardian’s perspective without being dissatisfied with the party’s assertion. The same applies to the fact that the Family Court decides whether to commence the proceedings in consideration of the party’s intent (Articles 9(2) and 12(2)).

In full view of the contents of the foregoing provision, legislative purpose, etc., where an application for commencement of adult guardianship or limited guardianship is filed, the Family Court shall determine whether to grant protection to either of the parties taking into account the purport and cause of the claim, the intention of the principal, the adult guardianship system, and the purpose of the check system after the restriction, etc., and shall determine the procedure to determine as necessary accordingly. Therefore, in a case where the commencement of limited guardianship is claimed, if the principal wishes to meet the requirements for commencement of adult guardianship and the commencement of adult guardianship in light of the doctor’s appraisal result, etc., the court may commence adult guardianship, and if necessary, the commencement of limited guardianship may

Meanwhile, Article 45-2(1) of the Family Litigation Act provides that "where a family court intends to commence adult guardianship or limited guardianship, it shall make an appraisal of the mental condition of the person to be placed under adult guardianship or limited ward: Provided, That this shall not apply where sufficient data exists to determine the mental condition of the person to be placed under adult guardianship or limited ward: Provided, That this shall not apply where sufficient data exists to determine the mental condition of the person to be placed under adult guardianship or limited ward." This provision does not require a doctor to determine whether the mental condition of the person to be placed under adult guardianship or limited ward is lacking or continuously lacking to handle the business due to mental constraints depending on the doctor's sentiment, but rather, the family court should decide whether the requirements for commencement of adult guardianship or limited guardianship are satisfied based on the mental capacity of the person to be placed under adult guardianship or limited ward. Therefore, where sufficient data to determine the mental condition

2. The lower court maintained the first instance court’s decision that commenced limited guardianship without a doctor’s opinion on the re-appellant’s claim for commencement of adult guardianship for the following reasons.

A. Since it is reasonable to see that the principal of the case is incapable of performing his/her duties due to mental constraints, there is a need to start limited guardianship for the principal of the case.

On May 16, 2018, the principal of the case was subject to the dementia screening (MME-DS) at the ○○-gu Dementia Health Center on 16th, 2018, and 15 out of the total 30 points. The principal of the case was diagnosed on and around November 201, 2018, and was hospitalized in △△ University Hospital on and around November 11, 2018. The principal of the case was hospitalized in the △△△ University Hospital on and around December 3, 2019. On December 3, 2019, 13 points out of the total point of 30 points were 13 points. The family affairs investigator of the court of the first instance presented opinions that the place of the case in question in question has a good south or efficiencies with respect to the person.

B. The Re-Appellant asserts that adult guardianship should be commenced because the re-appellant has continuously failed to perform his/her business capacity. However, considering the remaining capacity of the principal of the case, it is difficult to view that the re-appellant has continuously lacking his/her business capacity beyond

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s order was justifiable and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the requirements for commencement of adult guardianship, contrary to

4. The reappeal is dismissed as it is without merit, and the costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

June 10, 2021