Article 12 Equal recognition before the law
The system of appointing guardians under the Civil Code violates the principle of autonomy, depriving multiple rights of persons with disabilities (in Response to Paragraph 75 of the State Report)
The current system of guardianship and its related regulations can be said to comprehensively violate Article 12 of CRPD and against the interpretation of the General Comment No. 1. Under Article 15 of the Civil Code, a person who has had a guardian legally appointed (the term used in the State Report is a “person who has become the subject to the order of commencement of guardianship”) lacks legal capacity. Article 75 of the Civil Code further states that an expression of intent made by persons without legal capacity is invalid. Therefore, the impact on the rights of such persons is not limited to the area of “property management” as described in the State Report. Rather, the impact extends to all types of legal activity requiring expression of intent, such as marriage, leaving a will, serving as a representative for any public or private juridical person (e.g. as a member of a civic organization, which impacts the rights to freedom of association), disposition of property, expressing consent to medical procedures (which impacts rights to health and personal liberty), election rights, etc. Under Article 5-3 of the Social Welfare Act, such persons are deemed to be unable to work. It can be said that their entire social life is highly damaged. At the same time, the system does not include any system of periodic review as required by Article 12 (4) of CRPD. in addition to the full guardianship system, the Civil Code Article 15-1 provides for ordering “assistance”, which is a reduced form of guardianship that also restricts the right of persons under such order to make expression of intent.
Therefore, according to the interpretation of this article in General Comment No. 1, we call on the government to review the system of guardianship that completely takes away personal rights. Instead, it should move to develop an “assisted decision-making system”. In particular, the government should reform the following aspects of the system of “ordering the commencement of guardianship and assistance”:
Raise procedural protections: Under the current system of ordering guardianship or “assistance,” the procedure begins with a joint determination by the applicant, a doctor, and a court that the PWD in question has attained a “level requiring protection.” Although the Civil Code provides that PWDs have the right to be applicants, it does not stipulate how a person’s rights will be protected if s/he is not the applicant. Therefore, we propose amendments to the law that would guarantee an independent representative who could advocate the rights of the PWD during any proceedings that could lead to a determination of guardianship; moreover, such a representative should also have the power to initiate the procedure to cancel the limitations of rights after guardianship has taken effect.
Establish a periodic review system: Under the current system, once a guardianship or “assistance” has been ordered, there is no duration, unless another application is made to revoke such order. Moreover, courts do not proactively initiate related inquiries. Therefore, we propose that the government should amend the laws to require establishment of fixed duration for guardianship, as well as a periodic review system. The independent representative mentioned above should also be empowered to participate in this procedure.
Amend the trust system: Although the Trust Law provides a protection mechanism for the property of PWDs, it makes the application for guardianship a prerequisite condition. In other words, PWDs have to first relinquish other rights before they can avail themselves of this protection, which does not comply with the principle of autonomy under the CRPD. We propose that trusts and other financial services be separated from the system of rights limitation, so that PWDs may be able to decide for themselves how to exercise their property rights.
Consider establishing an “assisted decision making” system: The government should establish a working group to study such a system and prepare a legislative timetable. When studying such a system, reference should be made to the examples of more advanced systems, such as Ireland’s Assisted Decision Making Act, and a wide range of views from PWDs should be sought.
Until related legal amendments have been completed, when courts are reviewing orders of guardianship, they should consider whether the current Civil Code is compatible with the CRPD. If any incompatibilities are found, the court should apply for constitutional interpretation from the Council of Grand Justices. In such cases, the review process should cease pending the result of the interpretation.
Barriers and discrimination faced by PWDs in the exercise of their legal capacity (in Response to State Report Paras. 76-79)
The Civil Code, the Banking Act, and regulations governing the insurance sector recognize the PWDs who are not under orders of guardianship have legal capacity. However, in practice PWDs face many barriers and even discrimination in the exercise of this capacity. For example, persons without disabilities need only produce a stamp and two forms of identification to open a bank account. Whereas, people with visual impairments or persons with cerebral palsy must be accompanied by 2 witnesses, and in addition to open a checking account requires notarization. The insufficient government support is revealed when people with visual impairments cannot read contract documents, or persons with cerebral palsy are not able to communicate clearly with bank personnel, or people with hearing impairments lack services in sign language or through writing. Such persons must arrange on their own for professional assistants to accompany them in order to open an account or apply for a loan, in contrast to persons without disabilities, who can conduct many affairs very conveniently over the telephone.
Therefore, we believe that the government must fulfill its obligations of assistance under CPRD Art. 12 (3), both to urge financial institutions to modify unreasonable provisions, and to provide individual assistance to PWDs who need it. For example, financial institutions should provide reasonable accommodations for PWDs who have difficulty even to leave the house, such as making home visits to open accounts and enabling the use of internet banking.