2020 caused 547 Appointment of supervisor of voluntary guardianship

Claimant

Principal of the case

Special Appellant Law Firm Jinsung (Law Firm Jinsung, Counsel for defendant-appellant)

Seoul High Court Decision 200Na1000

An intervenor;

Changwon District Court Decision 2019Ra10098 Decided July 29, 2020

July 15, 2021

All special appeals are dismissed.

The cost of special appeal shall be borne by the special appellant.

The grounds of special appeal are examined.

1. Factual basis

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On December 6, 2017 and January 8, 2018, the claimant and the intervenor filed a petition for adjudication on the commencement of limited guardianship with respect to the principal of the case respectively (the Changwon District Court Decision 2017Ra10236, 2018Ra1006).

On March 11, 2019, the petitioner and the principal of the case entered into a guardianship contract designating the petitioner as the voluntary guardian of the principal of the case on March 11, 2019, and on March 12, 2019, the Changwon District Court (No. 13, 2019) recorded voluntary guardianship matters with respect to the principal of the case.

On March 15, 2019, the petitioner and the principal of the case filed the instant claim to appoint a supervisor of voluntary guardianship of the principal of the case.

B. On April 1, 2019, the court of the first instance rendered an adjudication on the commencement of limited guardianship to the principal of the case. On April 1, 2019, the court decided to appoint the claimant and the Korea Adult Guardianship Support Center, an incorporated association, to exercise the right to decide on personal matters, the right to consent to a juristic act, the right to revoke the right to consent, and the right to representation related to property. The said adjudication was dismissed and the reappeal became final and conclusive on May 7, 2020.

Although the first instance court and the appellate court registered the guardianship contract for the principal of the case, they determined that the legal guardian can be tried pursuant to Article 959-20(1) of the Civil Act in full view of the present state of the principal of the case, the contents and scale of the property to be managed by the principal of the case, the dispute between the claimant who is the principal of the case and the intervenor on the property.

C. On May 19, 2020, an adjudication for the commencement of limited guardianship was filed with the Changwon District Court (No. 18, 2020) to register the termination of voluntary guardianship, and the guardianship registration record of the relevant part was closed. On May 19, 2020, the registration of limited guardianship was filed with the Changwon District Court (No. 19, the Changwon District Court).

2. Whether the exception to the principle of priority over voluntary guardianship is granted;

(a) Article 959-20 (1) of the Civil Act provides that "where a guardianship contract has been registered, the Family Court may adjudicate on adult guardianship, limited guardianship or specific guardianship at the request of a voluntary guardian or a supervisor of voluntary guardianship only when it is particularly necessary for the principal's interest. In such cases, the guardianship contract shall be terminated at the time the principal is adjudged to commence adult guardianship or limited guardianship," and Paragraph (2) of the same Article provides that "where the principal is an adult ward, limited ward or specific ward, the Family Court shall adjudicate on the termination of the former adult guardianship, limited guardianship or specific guardianship in appointing a supervisor of voluntary guardianship: Provided, That where the continuation of adult guardianship or limited guardianship is deemed particularly necessary for the principal's interest, the Family Court shall not appoint a supervisor of voluntary guardianship".

In the event that a guardianship contract is registered, the provisions of the Civil Act provides that the principal’s will shall be respected in accordance with the principle of private autonomy and that the guardianship contract shall take precedence over the principal’s interest, and exceptionally, the commencement of legal guardianship (referring to adult guardianship, limited guardianship or specific guardianship) may be allowed only when it is particularly necessary for the principal’s interest. In light of the fact that Article 959-20(1) of the Civil Act does not specifically limit the time of registration of the guardianship contract, and that the main text of Article 959-20(1) provides that where the legal guardianship has already been commenced with respect to the principal, the appointment of a supervisor of voluntary guardianship and the decision on the termination of the previous legal guardianship shall be made, the foregoing Article 9-20(1) shall also apply to the case where the guardianship contract is registered before the judgment on commencement of legal guardianship becomes final and conclusive after filing a request for adjudication on commencement of legal guardianship with respect to the principal and, in such case, the Family Court may file a adjudication on commencement of legal guardianship only when it is deemed particularly necessary for the principal’s’s interest (see Supreme Court Order

The first sentence of Article 959-20(1) of the Civil Act stipulates that a guardian may adjudicate on legal guardianship only when it is particularly necessary for the principal's interest, and does not require a supervisor of voluntary guardianship to be appointed. Also, the determination of a guardian or supervisor of voluntary guardianship as a person entitled to statutory guardianship refers to the addition of a guardian or supervisor of voluntary guardianship, other than a person entitled to statutory guardianship under Articles 9(1), 12(1), and 14-2(1) of the Civil Act, so that a person entitled to statutory guardianship can smoothly perform his/her duties from voluntary guardianship to the statutory guardian. The second sentence of Article 959-20(1) of the Civil Act provides that "In this case, the guardianship contract shall be terminated at the time when the commencement of adult guardianship or limited guardianship is adjudicated," and "in this case, the case refers to the case where the statutory guardian is adjudicated pursuant to the first sentence of Article 9-20(1) of the Civil Act."

In light of the language, structure, purpose, etc. of these provisions, in a case where a guardianship contract is registered, if the guardianship contract is adjudicated on legal guardianship at the request of the claimant for legal guardianship, voluntary guardian, or voluntary supervisor of guardianship as prescribed by Article 9(1) of the Civil Act, as the special necessity for the principal’s interest is recognized, the guardianship contract shall be deemed terminated when the principal is adjudicated to commence adult guardianship or limited guardianship, regardless of the appointment of the supervisor of voluntary guardianship.

In addition, Article 959-20(1) of the Civil Act provides, “When it is particularly necessary for the principal’s interest,” which requires a statutory guardian to adjudicate on legal guardianship, notwithstanding the registration of a guardianship contract” refers to the cases where a guardian under a guardianship contract is deemed to need legal guardian protection because it is not adequate for the principal’s protection, taking into account the contents of the guardianship contract, whether the voluntary guardian is not suitable for his/her duties, whether the guardian’s mental constraints, and other various circumstances surrounding the guardianship contract and the principal (see Supreme Court Order 2017Switzerland515, supra).

B. Examining the above facts in light of the aforementioned legal doctrine, the following conclusion is derived.

Article 959-20(1) of the Civil Act shall apply to adjudication on commencement of limited guardianship, since the guardianship contract is registered before adjudication becomes final and conclusive after the adjudication on commencement of limited guardianship is requested for the principal of the case.

Notwithstanding a registered guardianship contract, it is recognized that there is a special need to adjudicate on limited guardianship for the interest of the principal of the case, and the guardianship contract was terminated by a judgment on the commencement of limited guardianship, and it cannot be viewed any different from the fact that the supervisor of voluntary guardianship was not appointed. The reason for special appeal that the registration on the termination of voluntary guardianship was illegal on a different premise cannot be accepted.

3. Conclusion

The special appeal of this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

July 15, 2021

Justices Noh Jeong-hee

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu