Non discrimination and the legal capacity of a ward under limited guardianship in Korea

The Korean Supreme Court held that the post office's restriction of the financial transactions using CDs, ATMs, and debit cards of a person under the limited guardianship and requiring the limited guardian and the person under limited guardianship together to visit a teller to make the transactions for which the family court ordered that the limited guardian's consent be required, discriminated against persons with disabilities. A person under limited guardianship is competent to act except for those matters for which the family court has determined that the consent of the limited guardian is required. If the court decides that a person under the limited guardianship should have the consent of the limited guardian, and person under the limited guardianship's acts without the consent of the limited guardian, it is interpreted that the limited guardian without representation can naturally exercise the right of revocation. However, not only does Article 140 of the Civil Code provide that only the principal and only his or her successor or representative can exercise the right of revocation, but the exercise of the right of revocation by the limited guardian restricts the legal capacity of a person under the limited guardianship, which is contrary to Article 12 of the Convention on the Rights of Persons with Disabilities. The Convention on the Rights of Persons with Disabilities requires that all persons with disabilities be recognised for the enjoyment of their legal capacity and that measures be taken to support their decision-making in order to enable them to exercise it. I argue that the right of revocation should not be granted to a limited guardian and that it is sufficient to support decision-making, including the exercise of the right of revocation by the person under the limited guardianship. Furthermore, while the targeted judgement referred to the Post Office's failure to allow financial transactions using CDs, ATMs and debit cards as discriminatory, the failure to have a system in place to enable such non-face-to-face transactions constitutes a failure to make a reasonable accommodation to eliminate discrimination against persons with disabilities. it is also discriminatory not to provide the necessary measure of supported decision making to enable a person with disabilities to exercise their legal capacity in financial transactions. The latter can be a more serious violation in that it can be a matter of discrimination against the right to freedom and the right to equality.