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박득배. (2018). 의사결정능력의 판정에 관한 법적 고찰. 한양법학, 29(2), 241-267. 

https://www.kci.go.kr/kciportal/ci/sereArticleSearch/ciSereArtiView.kci?sereArticleSearchBean.artiId=ART002351582

초록: 

Man is the subject of rights and duties while he is alive. However, ‘living’ is not important in real life, but ‘autonomy’ is important. Therefore, a person should have the ability to recognize the meaning or outcome of his / her act when conducting a specific act and to reasonably judge the possible outcome. Therefore, a person has an autonomous and rational mind and puts the value of life into realizing what he pursues.Decision-making ability is a premise on which people live their own lives. Therefore, even if the decision is somewhat unreasonable, it must be respected. On the other hand, people are acknowledged in their social relations and receive social care and support. This kind of social consideration and support is a legal device that enables us to live a more personal and valuable life. Nevertheless, arbitrary judgments should not deprive or limit the decision-making capacity.In other words, care and support policies should be determined through social consensus. Otherwise, even if it is a legitimate purpose to protect a person with a decision-making ability, it may result in unjustified violation of rights. Therefore, procedural justification must be guaranteed for policy.In real transactions, it is seldom that a contract is invalidated due to a dysfunctional reason. Therefore, it is necessary to “cancel” the legal effect on the deficiency of decision-making ability in order to realize the purpose of protection of actors.Otherwise, it will be a violation of dignity and worth as a person to the party, as if it makes social prejudice that “judgment of intellectual disability” is replaced with “dictum incompetence”.