Part Ⅳ Family
CHAPTER IV Guardianship
Section 1 Guardianship over Minors
A guardian shall be appointed for a minor when he has no parent or when both the parents can not exercise the rights nor assume the duties in regard to the minor child. But this does not apply where the minor has been married.
In regard to a minor child, parents may authorize, in a written form, another person to perform the function of a guardian for specific matters and within a fixed period.
The parent who exercises and takes rights and responsibilities to the minor may appoint a guardian by will.
The guardian, appointed by the preceding paragraph, within 15 days after knowing being appointed as a guardian, shall report his/her name and residence to the court; he/she shall also apply for members, appointed by local government, in order to draw up an inventory of the ward’s property with those members.
If the guardian does not report to the court within the said periods, he/she is deemed to waive his/her rights.
Where both parents cannot exercise the rights nor assume the duties in regard to a minor child, or where the parents die without appointing any guardian by a will, or the appointed guardian refuses to be sworn in, the following shall be determined as the guardian in order
(1) Grandparents living in the same household with the minor;
(2) Elder brothers or sisters living in the same household with the minor;
(3) Grandparents not living in the same household with the minor;
Guardian, within 15 days after knowing being appointed as a guardian, shall report his/her name and residence to the court; he/she shall also apply for members, appointed by local government, in order to draw up an inventory of the ward’s property with those members.
If the guardian could not be determined under paragraph 1, the court may, upon the application of the minor child, any relative within the fourth degree of kinship, the public prosecutor, competent authority, or the other interested person, for the best interests of the minor child, appoint or replace the child's elder collateral relative by blood within the third degree of relationship, competent authority, the social welfare institution, or any other proper person as the guardian, and order the way and manner of guardianship.
The court shall also appoint members for drawing up an inventory of the ward’s property when appointing guardians under preceding paragraph or appointing/changing guardians under provisions of Article 1106 and Article 1106-1.
In the absence of the guardian provided in the first paragraph, and before the appointment according to paragraph 3 of the provision being decided by the court, the local authorities of social welfare concerned shall be the guardian of the minor.
When electing or changing guardians, for the best interest of the ward, the court shall take everything into consideration; the following things shall be paid attention to
(1) the ward’s age, gender, willingness, health, and the need of developing the ward’s personality.
(2) the guardian’s age, employment, personality, willingness, attitude, health, finance, and criminal records.
(3) relations between the guardian and the ward or relations between the ward and others living in the same household.
(4) when a juristic person is the guardian, the category and content of its business; and relations between the juristic person and its representative and the ward.
If the guardian has good causes, with the court’s permission, he/she may dismiss his/her duty.
The following persons shall not act as guardians
(2) persons who are subjects to the commencement of guardianship or assistantship and have not yet revoked those orders.
(3) persons who declare bankrupt and have not yet resume their rights.
(4) absent persons.
Unless it is otherwise provided, a guardian shall, within the limits required for the protection and advancement of the ward's interests, exercise the rights and assume the duties of the parents in regard to a minor child. Where the guardianship is only provisionally authorized by the parents, the function of the guardian shall be limited to those so authorized.
When there are disagreements, regarding the ward’s serious rights, among several guardians, the court may designate one guardian to enforce rights.
The court may take opinions from the ward, competent authority or organization of social welfare when making preceding decision.
A guardian within the scope of his/her delegated power is the statutory agent of his ward.
Where the guardian has a conflict of interest with his/her ward or he/she cannot be the statutory agent to the ward under the law, the court can appoint a special agent based upon its discretion or the petition of the guardian, the ward, competent authority, organization of social welfare, or other interested persons.
On the commencement of guardianship, the guardian shall, in collaboration with the person designated by the will, local government, or the court, draw up an inventory of the ward's property within two months and shall also report to the court.
The court may extend periods when the guardian applies for extension.
The guardian may only do what is necessary for the management of the property being guarded before the completion of the inventory of the ward's property and also before reporting to the court.
The guardian shall exercise guardianship with the care of a good administrator.
The guardian shall not use or dispose of the ward's property except for the interests of the ward.
When the guardian does the following act, he/she shall acquire permission from the court; otherwise the act will not be effective.
(1) purchasing or disposing real property for the ward.
(2) renting out or providing others to use the ward’s living building or its base, or terminating lease of the ward’s living building or its base. The guardian shall not take the ward’s property for investment with the exception of purchasing state bond, treasury bills (TB), Central Bank’s saving fund, financial debt, negotiable certificates of deposit (NCD), banker’s acceptances (BA), or guaranteed-commercial paper (CP).
A guardian shall not acquire the property from his ward.
The ward’s property is managed by the guardian. All necessary payment for enforcing guardianship is paid by the ward’s assets.
The court, if necessary, may ask the guardian provide reports regarding guardianship, inventory of properties, in order to check guardianship or the ward’s assets.
A guardian may claim for compensation; the court determines the amount of compensation based on the labor involved and the assets of the ward.
When the guardian has any of the following circumstances and the ward has no guardian under paragraph 1 of Article 1094, the court may elects other proper guardian for the ward by its authority or upon the application of the ward or at the request of the applicant set forth in paragraph 3 of Article 1094
(2) with the court’s permission.
(3) any of the circumstances set forth in Article 1096.
Before the court elects a guardian, competent authority of local social welfare is the guardian of the ward.
If there is enough fact which indicates that the guardian does not act for the best interest of the ward, or other reasons indicate that the guardian should not be the guardian, the court may order guardianship to other proper person based on application made by applicant of paragraph 1 of preceding Article; and limitations set in paragraph 1 of Article 1094 do not apply.
When guardianship has changed, the guardian shall hand over the ward’s property to the new guardian. When the cause of guardianship ceases to exist, the guardian shall return the ward’s property to the ward; where the ward has deceased, the guardian shall hand over the ward’s property to his/her heirs. Under preceding two paragraphs, the guardian shall make statement of account for the ward’s property within two months from the termination of the guardianship and deliver the statement to the new guardian, the ward, or the ward’s heirs. The guardian may not be discharged from his/her duties until the new guardian, the ward, or the ward’s heirs approve his/her statement of account.
On the death of the guardian, the aforesaid account in the preceding article shall be rendered b his/ her heirs; if no heirs or heirs are unknown, the new guardian takes over the work, he shall report to the court along with an inventory of the ward’s property.
If the guardian, intentionally or negligently, has caused damage to the ward when performing his duties, the guardian shall compensate the ward any injury arising therefrom.
A claim for damages, based on preceding paragraph, shall be extinguished if not exercised within five years from the date the guardianship is revoked; if there is a new guardian, the period begins from the date the new guardian starts his/her guardianship.
The court shall inform the Household Administration Bureau for registration when electing guardians, allowing guardians’ dismiss, and re-electing or changing guardians.
If a minor is the subject to the commencement of guardianship based on Article 14, rules set forth in section 2 of this Chapter regarding adult guardianship apply to the minor as well.