Whether Article 959-20(1) of the Civil Act applies to cases where a guardianship contract is registered after a request for adjudication on the commencement of limited guardianship is filed with respect to the principal and before adjudication becomes final and conclusive (affirmative), and whether a family court may file an adjudication on the commencement of limited guardianship only when it deems it particularly necessary for the principal’s interest (affirmative)

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 commencement of adult guardianship or limited guardianship is adjudicated." 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 particularly necessary for the principal's interest, the Family Court shall not appoint a supervisor of voluntary guardianship, if the guardianship contract is registered, the Family Court shall have priority over the principal's will in accordance with the principle of private autonomy, and where the guardianship contract has already been established at the time of adjudication on the commencement of voluntary guardianship, the Family Court may, in light of the main sentence of Article 95-20 (1) of the Civil Act, grant special restrictions to the principal's interest.

In addition, “where it is particularly necessary for the principal’s interest” to adjudicate on limited guardianship, etc. notwithstanding the registration of guardianship contracts prescribed in the above provision means cases where protection by legal guardianship is deemed necessary because the guardianship contract is not adequate for the principal’s protection, in full view of the contents of the guardianship contract, whether a voluntary guardian prescribed in the guardianship contract is not appropriate for his/her duties, whether the principal’s mental constraints, and all other circumstances surrounding the guardianship contract and the principal.

Article 959-20 of the Civil Act

Claimant (Attorney Lee Jae-chul et al., Counsel for the plaintiff-appellant)

The principal of the case (Law Firm Yang Doo et al., Counsel for the defendant-appellant)

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

Seoul Family Court Order 2016BB30098 dated January 13, 2017

The reappeal is dismissed.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the first ground for reappeal

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 commencement of adult guardianship or limited guardianship is adjudicated." 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 particularly necessary for the principal's interest, the Family Court shall not appoint a supervisor of voluntary guardianship, if the guardianship contract is registered, the Civil Act provides that the guardianship contract shall take precedence over the principal's will in accordance with the principle of private autonomy, and where the former guardianship contract is requested for the benefit of the principal at the time of adjudication on the commencement of voluntary guardianship, the Family Court may, in light of the main sentence of Article 95-20 (1) of the Civil Act, grant special restrictions to the guardianship.

In addition, “where it is particularly necessary for the principal’s interest” to adjudicate on limited guardianship, etc. notwithstanding the registration of guardianship contracts prescribed in the above provision refers to cases where protection by legal guardianship is deemed necessary because the guardianship contract is not adequate for the principal’s protection, in full view of the contents of the guardianship contract, whether the voluntary guardian prescribed in the guardianship contract is not appropriate for the principal’s duty, whether the principal’s mental constraints, and other circumstances surrounding the principal.

In full view of the facts duly admitted by the court below and the records, the level of mental restraint of the principal of the case, and all the circumstances surrounding the guardianship contract and the principal of the case, it is recognized that protection by limited guardianship is necessary for the principal of the case, notwithstanding the registration of the guardianship contract.

Although the reasoning of the order of the court below is partly inappropriate, the judgment below to the same effect is just, and there is no error by misapprehending the legal principles on the principle of preferential guardianship, thereby affecting the conclusion of the judgment

2. Judgment on the second and third grounds for reappeal

Inasmuch as the lower court’s determination that the commencement of limited guardianship is particularly necessary for the interest of the principal of the case, notwithstanding the registration of guardianship contracts, is justifiable, the lower court did not err by misapprehending the legal doctrine on effective guardianship contracts, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)