추가 적립 안내

우리 사회는 급속히 고령화되어 가고 있으며 노인인구의 증가에 따른 치매환자의 급증 등으로 국민도 점차 후견제도에 관심을 가지게 됨에 따라 전국 가정법원에 후견관련 신청 건수가 매년 지속적으로 증가하고 있다.
또한 국내거주 외국인의 증가는 국제재판관할의 적용과 관련하여 이 제도를 이용하려는 사람들에게는 이에 대한 준비가 필요하다.
앞으로 전문직후견인으로서는 후견관련사건이 증가할 것으로 예상되므로 이에 대한 후견절차 등에 관한 실무에서의 대응도 철저히 준비해야 할 때이다.
이에 후견업무에 관한 실무적？법리적 사례를 분석하고 합리적이며 논리적인 새로운 후견절차, 후견제도의 개선, 법리해석의 기준 및 판례 등에 대하여 정립할 필요성이 있다.
그리고 2018. 10.경 대한민국 서울에서 ‘법 앞에 평등’, ‘의사결정능력 장애인의 사회통합’
을 주제로 ‘제5회 성년후견 세계대회’가 개최되었는데, 위 세계대회를 통하여 성년후견제도가 이 제도를 이용하고자 하는 실무자 및 국민에게 제대로 전달되어서 제도의 이용을 필요로 하는 분들께 조금이나마 도움이 되었으면 하는 기대를 해본다.

제1장 서 론
Ⅰ. 개 관···································································································3
Ⅱ. 성년후견제도의 주요내용········································································· 5
Ⅲ. 각국의 성년후견제도의 내용 및 도입배경·················································· 6
1. 독 일······························································································ 6
2. 프 랑 스··························································································· 9
3. 일 본···························································································· 11
4. 영 국···························································································· 13
Ⅳ. 성년후견제도의 이념적 기초···································································16
1. 자기결정권의 존중············································································16
2. 정상화(Normalization)···········································································17
3. 잔존능력의 활용···············································································17
4. 필요성의 원칙··················································································18
5. 보충성의 원칙··················································································18
6. 유엔장애인 권리협약과 성년후견제도··················································19
Ⅴ. 후견인의 사회복지적 역할······································································21
제2장 성년후견
Ⅰ. 성년후견의 개시··················································································· 23
1. 개시와 종료·····················································································23
2. 성년후견의 원인···············································································23
3. 절차의 개시·····················································································24
4. 관 할···························································································· 26
5. 본인 의사의 존중············································································· 27
6. 정신감정························································································· 28
7. 후견사건에서의 가사조사···································································29
8. 청구인의 청구와 법원의 심판·····························································30
9. 청구의 철회·····················································································31
Ⅱ. 성년후견 심판의 고지 등······································································· 31
1. 개 요···························································································· 31
2. 즉시항고························································································· 32
3. 재 항 고························································································· 33
4. 후견등기부기록의 촉탁······································································33
Ⅲ. 성년후견인의 선임················································································ 34
1. 개 요···························································································· 34
2. 성년후견인의 수···············································································34
3. 성년후견인의 자격············································································35
4. 성년후견인의 법률상의 지위······························································38
Ⅳ. 성년후견인의 사무················································································ 43
1. 개 요···························································································· 43
2. 피성년후견인의 복리와 의사존중························································44
3. 피성년후견인의 재산관리···································································45
4. 성년후견인과 피성년후견인과의 이익상반행위······································53
5. 피성년후견인의 신상보호···································································56
Ⅴ. 성년후견인의 사임 및 변경···································································· 69
1. 성년후견인의 사임············································································69
2. 성년후견인의 변경············································································69
Ⅵ. 후견사무비용 및 보수의 청구································································· 72
1. 후견사무비용의 청구·········································································72
2. 후견보수 청구··················································································72
Ⅶ. 후견사무보고서·····················································································75
Ⅷ. 성년후견의 종료··················································································· 75
1. 개 요···························································································· 75
2. 절 차···························································································· 76
3. 즉시항고························································································· 77
4. 후견등기부기록 촉탁·········································································77
5. 피성년후견인에 대하여 한정후견개시 심판을 할 경우··························· 77
Ⅸ. 성년후견사무의 종료와 계산···································································78
[서식 1] 성년후견개시 심판 청구······················································· 79
[서식 2] 소송구조 신청서··································································87
[서식 3] 성년후견인의 법정대리권의 범위 변경 청구····························90
[서식 4] 성년후견인 변경 심판 청구···················································92
[서식 5] 성년후견인의 임무수행에 관하여 필요한 처분 명령 청구··········94
[서식 6] 성년후견인의 의사표시를 갈음하는 재판 청구·························96
[서식 7] 성년후견인의 재산목록 작성기간 연장 허가 청구···················· 98
[서식 8] 피성년후견인 격리에 대한 허가 청구··································· 100
[서식 9] 피성년후견인에 대한 의료행위 동의에 대한 허가 청구···········102
[서식 10] 피성년후견인의 재산상황에 대한 조사 명령 청구·················104
[서식 11] 피성년후견인이 거주하는 건물 또는 대지에 대한매도 등에
대한 허가 청구································································· 106
[서식 12] 성년후견(감독)인에 대한 보수의 수여 청구························· 108
[서식 13] 성년후견인이 피성년후견인의 신상에 관하여 결정할 수 있는
권한의 범위 변경 청구·······················································110
[서식 14] 특별대리인 선임 청구·······················································112
[서식 15] 성년후견인 사임에 대한 허가 청구···································· 114
[서식 16] 성년후견종료 심판 청구····················································116
[서식 17] 후견사무보고서································································118
[본 저서에 사용된 후견관련 양식은 실무 참조용으로 사용하기 바라며, 서울가정법원에서 제공하는 후견사건(성년.
한정.특정 후견 개시심판청구서 등 20여종) 관련 양식은 대한민국 법원 전자민원센터(https://help. scourt..go.kr)
또는 서울가정법원 홈페이지(https://slfamily. scourt. go.kr)에서 내려 받을 수 있음.]
제3장 한정후견
Ⅰ. 한정후견의 개시··················································································135
1. 개시와 종료···················································································135
2. 한정후견의 원인·············································································135
3. 절차의 개시···················································································136
4. 관 할···························································································136
5. 본인의 의사존중과 당사자 심문························································136
6. 정신감정························································································136
Ⅱ. 한정후견개시의 심판청구 및 효과························································· 137
1. 한정후견개시의 심판청구·································································137
2. 한정후견 개시심판의 효과······························································· 138
3. 즉시항고························································································139
Ⅲ. 한정후견인의 선임 및 사무···································································140
1. 한정후견인의 선임··········································································140
2. 한정후견인의 사무 등····································································· 140
Ⅳ. 한정후견감독인의 선임 및 사무···························································· 145
Ⅴ. 한정후견의 종료··················································································146
[서식 18] 한정후견 개시 심판 청구·················································· 147
[서식 19] 한정후견인의 동의를 받아야 하는 행위의 범위 변경 청구·····155
[서식 20] 한정후견인의 동의를 갈음하는 허가 청구··························· 159
[서식 21] 한정후견인의 대리권의 범위 변경 청구······························ 161
[서식 22] 한정후견인이 피한정후견인의 신상에 관하여 결정할 수 있는
권한의 범위 변경 청구·······················································165
[서식 23] 피한정후견인 격리에 대한 허가 청구································· 167
[서식 24] 피한정후견인이 거주하는 건물 또는 대지에 대한 매도 등에 대한
허가 청구·········································································169
제4장 특정후견
Ⅰ. 특정후견의 개시··················································································171
1. 특정후견의 개시·············································································171
2. 특정후견의 원인·············································································171
3. 절차의 개시···················································································172
Ⅱ. 특정후견 개시 심판청구 및 효과···························································172
1. 관할 등·························································································172
2. 심판의 고지와 즉시항고·································································· 173
3. 후견등기부기록의 촉탁····································································174
Ⅲ. 특정후견인의 선임 및 사무···································································174
1. 선 임···························································································174
2. 후견사무 등···················································································175
Ⅳ. 특정후견인의 사임 및 변경···································································177
1. 특정후견인의 사임··········································································177
2. 특정후견인의 변경··········································································178
Ⅴ. 특정후견감독인의 선임 및 사무···························································· 178
Ⅵ. 특정후견의 종료··················································································179
Ⅶ. 특정후견과 공공후견지원사업······························································· 181
[서식 25] 특정후견 심판 청구··························································182
[서식 26] 특정후견인의 의사표시를 갈음하는 재판 청구····················· 186
[서식 27] 피특정후견인의 재산상황에 대한 조사 명령 청구·················188
[서식 28] 특정후견인의 임무수행에 관하여 필요한 처분 명령 청구······ 190
[서식 29] 특정후견인 변경 심판 청구··············································· 192
[서식 30] 특정후견감독인 선임 청구·················································194
[서식 31] 특정후견감독인의 의사표시를 갈음하는 재판 청구··············· 196
[서식 32] 특정후견감독인 사임에 대한 허가 청구······························ 198
[서식 33] 특정후견감독인 변경 심판 청구·········································200
[서식 34] 특정후견(감독)인에 대한 보수의 수여 청구························· 202
[서식 35] 특정후견종료 심판 청구····················································204
[서식 36] 특정후견인 사임에 대한 허가 청구···································· 206
제5장 임의후견
Ⅰ. 개 요······························································································· 209
Ⅱ. 후견계약의 성립 및 내용······································································210
1. 후견계약의 성립·············································································210
2. 대리에 의한 후견계약체결 여부························································210
3. 임의후견계약의 양태·······································································212
4. 후견계약의 내용·············································································212
Ⅲ. 후견계약의 효력발생············································································213
1. 임의후견감독인의 선임····································································213
2. 후견계약의 철회？변경 등·································································215
Ⅳ. 임의후견감독인··················································································· 217
Ⅴ. 임의후견인························································································· 220
Ⅵ. 임의후견의 종료··················································································221
Ⅶ. 법정후견의 보충성···············································································222
1. 임의후견에서 법정후견으로······························································222
2. 법정후견에서 임의후견으로······························································224
[서식 37] 임의후견감독인 선임 심판 청구·········································226
[서식 38] 임의후견인 해임 심판 청구··············································· 229
[서식 39] 임의후견감독인 사임에 대한 허가 청구······························ 231
[서식 40] 임의후견감독인 변경 심판 청구·········································233
[서식 41] 임의후견감독인의 의사표시를 갈음하는 재판 청구··············· 235
[서식 42] 임의후견감독인에 대한 보수의 수여 청구··························· 237
[서식 43] 후견계약 종료 허가 청구·················································· 239
제6장 성년후견제도의 실무운영 면에서의 역할
Ⅰ. 법정후견제도······················································································ 249
1. 신청단계에서의 역할·······································································249
2. 심리단계에서의 역할·······································································251
3. 법정후견인으로서의 역할·································································251
4. 성년후견인 선임직후의 사무···························································· 254
5. 후견인 사무의 정리········································································ 256
Ⅱ. 임의(계약)후견제도···············································································257
1. 계약체결시의 역할··········································································257
2. 임의후견인으로서의 역할·································································259
Ⅲ. 후견감독인························································································· 260
1. 후견사무감독의 필요성····································································260
2. 가정법원의 후견사무감독·································································261
3. 후견감독 매뉴얼의 작성·································································· 262
4. 성년후견감독인의 사무····································································263
Ⅳ. 가정법원의 기타 후견감독사건······························································269
1. 민법 제947조의2 관련(권한초과 행사)················································ 270
2. 후견인의 임무수행에 관하여 필요한 처분 명령(제954조)······················270
3. 후견인 변경 등 사건·······································································270
4. 후견인 권한 변경 등 사건······························································· 270
5. 후견인의 의사표시와 관련한 사건·····················································270
6. 기타 부수사건················································································271
제7장 후견인으로서 법인의 역할
Ⅰ. 개 요······························································································· 273
Ⅱ. 도입 경위···························································································273
Ⅲ. 성년후견제도······················································································ 274
1. 규정의 명문화················································································274
2. 후견법인의 적격성··········································································275
3. 운용의 장？단점 등··········································································276
Ⅳ. 일본의 경우························································································277
1. 법인후견 선임건수··········································································277
2. 법인후견 수임의 실제····································································· 277
Ⅴ. 독일의 경우························································································279
1. 후견인(돌봄인)················································································ 279
2. 후견(돌봄)협회················································································280
3. 후견사단························································································280
4. 성년후견기관(성년후견청)··································································281
Ⅵ. 결 론······························································································· 281
제8장 공공후견
Ⅰ. 공공후견지원사업의 의의 및 개요························································· 283
Ⅱ. 지원대상···························································································· 283
1. 발달장애인···················································································· 283
2. 정신장애인···················································································· 284
3. 치매노인························································································284
Ⅲ. 지원내용···························································································· 285
Ⅳ. 공공후견에서의 후견유형 활용······························································285
Ⅴ. 공공후견지원사업의 수행기관······························································· 286
제9장 성년후견인의 책임문제(제3자와 관련하여)
Ⅰ. 성년후견인 등의 책임·········································································· 287
1. 피후견인의 불법행위 책임(민법 제754조)············································287
2. 성년후견인의 책임(민법 제755조)·······················································287
3. 면책이 되는 경우(제755조 제1항 단서)················································288
4. ？정신건강증진 및 정신질환자 복지서비스 지원에 관한
법률(정신건강 복지법)？과의 관계························································· 288
5. 성년후견인의 감독의무의 구체적 내용···············································289
6. 성년후견인으로서의 구체적 대응방법················································ 291
Ⅱ. 한정후견인？특정후견인의 책임······························································292
Ⅲ. 전문직후견인의 배상책임보험 문제························································292
제10장 사전처분
Ⅰ. 개 요······························································································· 295
Ⅱ. 임시후견인 선임 사전처분····································································296
Ⅲ. 직무집행 정지 및 직무대행자 선임 사전처분·········································· 297
Ⅳ. 고지와 통지························································································298
Ⅴ. 후견등기부기록의 촉탁·········································································298
Ⅵ. 임시후견인, 직무대행자 등의 보수 지급·················································299
1. 보수의 지급···················································································299
2. 보수의 예납···················································································299
Ⅶ. 불 복······························································································· 300
[서식 44] 임시후견인 선임 사전처분 신청·········································301
[서식 45] 성년후견인 직무집행정지 및 직무대행자 선임 사전처분 신청 304
제11장 성년후견의 공시
Ⅰ. 관 할······························································································· 307
Ⅱ. 후견등기부편성··················································································· 308
Ⅲ. 성년후견 등기사항···············································································308
Ⅳ. 등기사항증명서의 교부 등(법 제15조 내지 제17조)···································· 309
Ⅴ. 변경등기의 신청··················································································309
Ⅵ. 종료등기의 신청··················································································310
제12장 성년후견인과 사후사무
Ⅰ. 개 요······························································································· 311
Ⅱ. 성년후견인의 사후사무·········································································312
1. 후견인직무와 관련하여····································································312
2. 기타사항························································································312
Ⅲ. 성년후견인의 사후사무와 관련문제························································313
1. 관리의 계산(정산사무)······································································313
2. 관리재산의 일시보관과 상속인에의 반환············································314
3. 상속재산관리인, 부재자의 재산관리인선임청구···································314
4. 성년후견종료의 등기신청·································································315
5. 가정법원에 후견사무종료보고···························································315
6. 피후견인의 사망에 관련되는 공적 사무의 처리·································· 315
7. 재산처리에 관한 사무····································································· 316
8. 사후의 종교적 의례에 관한 사무 등··················································318
9. 피후견인의 소송기록 등·································································· 318
Ⅳ. 결 론······························································································· 319
제13장 국제사법과 성년후견
Ⅰ. 개 요······························································································· 321
Ⅱ. 국제재판관할······················································································ 321
1. 재산에 관한 소·············································································· 321
2. 관련사건의 관할·············································································322
3. 후견사건의 특별관할·······································································322
4. 후견의 재판관할·············································································322
제14장 후견인의 윤리적 사명
Ⅰ. 개 요······························································································· 323
Ⅱ. 성년후견제도의 기본원칙······································································324
Ⅲ. 성년후견인의 행동규범(강령)································································· 326
참 고 문 헌························································································· 328
◈ 부 록 Ⅰ_
1. 후견이 문제가 되는 사례들··························································331
2. 성년후견 등 개시심판결정문 사례·················································335
3. 재산목록 보고서·········································································352
◈ 부 록 Ⅱ_
1. 신구조문대비표(민법)··································································· 361
2. 신구조문대비표(가사소송법)····························································398
3. 후견등기에 관한 법률································································· 418
4. 가사소송규칙············································································· 430
5. 민사 및 가사소송의 사물관할에 관한 규칙·····································471
◆ 사항색인······················································································· 475

제3판(개정 증보판) 머 리 말

본서를 2016년에 처음 출간한 후 2년 만에 제2판을 내게 되었고, 성년후견제도에 관심을
주신 분들의 성원에 힘입어 5년여 만에 제3판(개정 증보판)을 출판하게 되었다. 초판에서는성년후견제도가 시행 된지 2년여에 불과하여 후견 절차 및 실무에 관한 사례 및 판례를 구하기 어려워 부득이하게 이론을 중심으로 작업을 할 수밖에 없었고 아쉬움으로 남았었다.
2011. 3. 7. 민법의 개정(법률 제10429호)으로 성년후견제도가 2013. 7월경부터 시행되었는데 벌써 10여년이 경과하였다. 그 동안 필자는 대한변호사협회 성년후견법률지원 특별위원회의 위원장을 맡으면서 각종 후견사건관련 실무, 후견관련 교육, 국.내외 회의 및 서울가정법원 등에서 후견인으로서 실무를 담당하고 있는 실무자 및 회원들로부터 후견 관련 내용, 절차 등에 관한 자료, 사례 및 판례 등을 수집하여 정리할 기회가 있어, 제3판에서는 그동안 부족하고 미비한 점 등을 보완？정리하여 보았다.
그 밖에 동아시아 국제학술대회, 한？독 성년후견 전문가대회, (사) 성년후견학회 등 성년후견 관련 국내외 기관들과의 간담회, 세미나 등을 통하여 후견제도에 관한 이론도 좀 더 정리할 수 있었고, 이와 같은 자료들은 전문직 후견인 교육자료로 활용한 바 있다.
우리 사회는 급속히 고령화되어 가고 있으며 노인인구의 증가에 따른 치매환자의 급증 등으로 국민도 점차 후견제도에 관심을 가지게 됨에 따라 전국 가정법원에 후견관련 신청 건수가 매년 지속적으로 증가하고 있다.
또한 국내거주 외국인의 증가는 국제재판관할의 적용과 관련하여 이 제도를 이용하려는 사람들에게는 이에 대한 준비가 필요하다.
앞으로 전문직후견인으로서는 후견관련사건이 증가할 것으로 예상되므로 이에 대한 후견절차 등에 관한 실무에서의 대응도 철저히 준비해야 할 때이다.
이에 후견업무에 관한 실무적？법리적 사례를 분석하고 합리적이며 논리적인 새로운 후견절차, 후견제도의 개선, 법리해석의 기준 및 판례 등에 대하여 정립할 필요성이 있다.
그리고 2018. 10.경 대한민국 서울에서 ‘법 앞에 평등’, ‘의사결정능력 장애인의 사회통합’
을 주제로 ‘제5회 성년후견 세계대회’가 개최되었는데, 위 세계대회를 통하여 성년후견제도가 이 제도를 이용하고자 하는 실무자 및 국민에게 제대로 전달되어서 제도의 이용을 필요로 하는 분들께 조금이나마 도움이 되었으면 하는 기대를 해본다.
아무쪼록 이 책이 성년후견제도에 관심을 가진 법조인과 실무가들에게 조금이라도 도움이 되었으면 하고, 성년후견제도의 발전에도 기여했으면 하는 바람이다.
끝으로 이 책이 출판이 되는데 도움을 주신 (사) 한국후견협회 소순무 회장님, 한양대학교 법학전문대학원 제철웅 교수님, 인하대학교 법학전문대학원 박인환 교수님 그리고 성년후견제도에 대해 초기부터 함께 연구하고 교육하며 고락을 함께 한 대한변호사협회 성년후견법률지원특별위원회 송인규 위원장님 및 위원분들께도 정중히 감사드린다.

2024. 3.

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