任意後見性と法 : -ウテ・ヴァルター(ドイツ)「世話法改正法における予防的代理権の法制度」を手がかりに-

機関リポジトリ Web Site

書誌事項

タイトル別名
  • Voluntary Guardianship and Law : - Ute Walter (Germany) "Das Beteuungsrechtsanderungsgesetz und das Rechtsinstitut der Vorsorgevollmacht"
  • ニンイ コウケンセイ ト ホウ : ウテ ヴァルター ドイツ セワホウ カイセイホウ ニオケル ヨボウテキ ダイリケン ノ ホウ セイド オ テガカリ ニ

この論文をさがす

説明

P(論文)

In Germany, "Betreuungsgesetz" came into effect from 1992, and the system of care wasestablished. The system consists of the principle of necessity and the subsidiary principle. Eventhough care is needed, if other measures exist-for instance, an appointment of a voluntaryattorney by a care-recipient-care by the law is exempted. A voluntary attorney takes precedenceover a legal guardian. But the provision for a voluntary attorney was not provided in the law. In the "Betreuungsrechtsanderungsgesetz", which was amended in 1999, new provision for avoluntary attorney was added. In the provision, a voluntary attorney's agreement on medicaltreatment and deprivation of freedom is as equally valid as a legal guardian under the permissionof a court. In this case, a written assignment to a voluntary attorney by a care-recipient must bepresented and such treatments must be expressly provided in the text. In this way a voluntary attorney is given the same competence as a legal guardian. From thelegal point of view, however, they are not equally handled. The legislators ask care-recipients todetermine by themselves what part of agency they assign to the voluntary attorney. Thus, the legislators are faced with a difficult problem how they may harmonize the personalrule of self-determination with the rule of law which forcibly regulates the society. J.S. Mill developed the difficult issue in his work "On Liberty (1859)", as a matter ofinterference in personal liberty by legal authority. After that, the issue has been dicussed invarious ways and has become the legal subject on what the role of the law should be. The legislators of the "Betreuungsrechtsanderungsgesetz" have to cope with this issue, buttheir attempts have just begun. In Japan, the Adult-Guardianship was established on April 1,2000. Since the law contains both legal guardianship and voluntary guardianship as thesupplementary system, we cannot be free from the discussion about legal compulsion (legalauthority) versus self-determination (personal liberty).

収録刊行物

キーワード

詳細情報 詳細情報について

問題の指摘

ページトップへ