Claimant (Attorney Lee In-bok et al., Counsel for plaintiff-appellant)

The principal of the case (Law Firm Yang Hun-Ga, Attorneys Kim Su-soo et al., Counsel for the plaintiff-appellant

Intervenor 1 and two others (Attorneys Kim Yong-sung et al., Counsel for the intervenor-appellee)

Seoul Family Court Order 2015Hu31667 dated August 29, 2016

1. The appeal of this case is dismissed.

2. The cost of appeal shall be borne by the principal of the case.

1. Purport of claim

Adult Guardianship shall commence with respect to the principal of the case. The adult guardian of the principal of the case shall be appointed as Nonparty 1 (1 omitted), Intervenor 1 (2 omitted), Nonparty 2 (3 omitted), Intervenor 2 (4 omitted), and Intervenor 3 (5 omitted).

2. Purport of appeal;

The adjudication of the first instance shall be revoked, and the claimant's claim shall be dismissed.

1. Quotation of the trial of the first instance;

The reasoning for the court’s explanation on the instant case is as stated in the reasoning of the first instance trial except for the addition of the following parts. As such, Article 34 of the Family Litigation Act, Article 23 of the Non-Contentious Case Litigation Procedure Act, and Articles 443(1) and 420 of the Civil Procedure Act are cited.

2. The addition;

(a) 1.-A. Details to be added to the part concerning the facts found guilty of the trial in the first instance;

○ The court requested the principal of the case to appear before the court to confirm his/her intention to appeal against him/her and hear his/her opinion on the commencement of limited guardianship, but the principal of the case refuses to attend the court without good cause.

○ According to the video file (Evidence No. 44) in which the representative of the principal of the case took and submitted the conversation between the principal of the case and the principal of the case, the principal of the case was already present at the court of first instance, and the principal of the case was tried by the court of first instance to ask his/her agent whether or not he/she requested a trial, what contents of the trial, and which court is going to hold a trial even if he/she was tried by the court of first instance to commence limited guardianship, and whether or not he/she is the husband of the case (the petitioner is married to Nonparty 3 in 1963) repeatedly questioning the petitioner, and thus, the conversation is not properly performed, and it was 10 minutes or more for explaining that his/her agent should be present

(b) Details to be added to the part of paragraph (b) of the first instance trial;

(3) The assertion on the interruption of the trial by the party following the conclusion and registration of guardianship contracts and the request for appointment of supervisor of voluntary guardianship

The representative of the principal of the case asserts that, since the principal of the case entered into a guardianship contract with the non-party 2 as a voluntary guardian (hereinafter “instant guardianship contract”) and registered and requested the Family Court to appoint a voluntary supervisor, the party’s deliberation shall be suspended until the judgment on the claim is rendered in accordance with the purport of Article 959-20 of the Civil Act recognizing the priority status of voluntary guardian over the statutory guardian. However, the above assertion cannot be accepted in light of the following circumstances acknowledged by the written evidence No. 45 and the overall purport of the examination and the contents of the relevant provisions of the Civil Act.

○ The guardianship contract takes effect from the time when the Family Court appoints a supervisor of voluntary guardianship (Article 959-14(3) of the Civil Act), and even when a guardianship contract is registered, the Family Court may adjudicate on statutory guardianship, if necessary for the principal’s interest. In such cases, the guardianship contract is terminated at the time when the commencement of statutory guardianship is adjudicated (Article 959-20(1) of the Civil Act). Even when a request for appointment of a supervisor of voluntary guardianship is made after the commencement of statutory guardianship, if the continuation of statutory guardianship measure is deemed particularly necessary for the principal’s interest, the Family Court does not appoint a supervisor of voluntary guardianship (Article 959-20(2) of the Civil Act), and it is evident in the language and text of the above provisions that the fact that the request for appointment of a supervisor of voluntary guardianship does not obstruct the deliberation and

○ When the Family Court appoints a statutory guardian, it shall respect the ward’s own will, and take into account other circumstances such as the principal’s health, living relationship, property status, occupation and experience of a person to be a guardian, and the existence of an interest in the principal (Articles 936(4) and 959-3(2) of the Civil Act). It is highly likely that concluding and registering a guardianship contract and requesting for the appointment of a voluntary guardian will be abused or abused as means of hindering the Family Court’s proper appointment of a statutory guardian and delaying proceedings for deliberation.

The time of concluding the guardianship contract in this case was one year after the date on which the commencement of adult guardianship for the principal of this case was requested for appointment of a supervisor of guardianship on December 26, 2016, which was immediately before the date of the first instance trial, after the adjudication on the commencement of limited guardianship in the court of first instance. On December 19, 2016, the date of the second trial of this case was the date on which "if the principal of this case does not express his/her intention to directly attend the court by destroying his/her intention to refuse to attend the court, the guardianship contract was registered on December 26, 2016, which was after the notification that "if the principal of this case does not express his/her intention to directly attend the court by abusing his/her intention to refuse to attend the court, the principal of this case or voluntary guardian under the above guardianship contract in the court of first instance was requested to appoint a supervisor of guardianship on the 28th of the same month. In light of such progress, it cannot be determined that the principal of this case or voluntary guardian under the above guardianship contract has intention to obstruct the procedure by abusing the guardianship system.

As seen in the relevant provisions, the priority of voluntary guardianship and the supplement of legal guardianship are not absolute, but can be restricted “where it is particularly necessary for the interest of the principal”. However, a request for the conclusion of a guardianship contract and the appointment of a supervisor of voluntary guardianship on the ground that “the principal of the case is in a situation lacking to handle affairs due to mental constraints,” is completely contrary to the consistent assertion of the principal of the case from the time the petition for a trial of this case was filed until the date of December 19, 2016 to the date of trial, and is completely contrary to the assertion that “the principal of the case is not in a situation lacking to deal with affairs due to mental constraints,” and is made unilaterally and repeatedly without any opinion exchange with the petitioner and the intervenors, so it is very doubtful whether the principal of the case was made according to the true will without any mental constraints of the principal of this case, and further, whether the appointment of supervisor of voluntary guardianship is for the interest of the principal of this case. Therefore, it is not possible to commence a trial on the ground that there is a request for appointment of a supervisor of voluntary guardianship.

3. Conclusion

Therefore, the judgment of the first instance is legitimate, and it is so decided as per Disposition.

Judges Written (Presiding Judge) shall take full advantage of all the Justices