What view have you had of the current system, with its a dependency on incompetence and quasi-competence
declarations in implementing guardianship?
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Mr. Nukada
The gist of the issue in my mind is aid and assistance rendered to those who
need them. Yet, the current system is basically a prohibition of
the use of their capacity (* see footnote). Some
legal specialists call it "protection at the price of
having rights taken away." I fully agree with this
view. The basic structure of traditional practice is still found
in the proposed new system.
To take one of the core elements of the proposed system, aid for instance: this comes with an
attached clause which limits the capacity of beneficiary.
I might even suspect that the new system is a mere expansion of
the application of the suppressive elements of the current
system over a broader segment of the population. Rising
criticism against the proposal is focused exactly on this point.
To expand the scope of the aid to more people and change the
system to accommodate such proposal has been welcomed, but
retention of the suppression of individual capacity in the new
system is something to which the public objects. People may also
feel that the retention of such element may impair safe
transaction. The change must be overall. Yet, there seems to
have been a failure in restructuring the basic concept on
which the new system has been developed.
Taking into consideration these fundamental problems, I can't grade the proposal higher than 50
to 60 points out of 100. The only remedy is that it is
subject to review at the Diet level within a fixed period of
time, hopefully providing a basis for further upgrading.
Footnote: "Ability to Act:" The ability of a
person to execute one's rights
and duties. One who is does
not possess such ability is called "handicapped
ability
actor". To date, there have been only three categories of
the people
who are recognized by the civil code as not a
capable person; juvenile,
incompetent and quasi-incompetent.
Are you talking about the nullifying power exercised by a
guardian that make the act of the person whose capacity
is under the control invalid?
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Mr. Nukada
The concept of nullification should not be summarily denied. The problem is the
possibility that the concept might overwhelm the entire
operation. Post nullification of some undesirable
transaction by commercial entities alone may not remove actual
damage done to an aging person.
Experience has shown us many
problems of that kind. The very transaction we feel needs to be
removed may remain, even after apparent
nullification. A deliberate fraudulent transaction may
trick anyone, not just aging citizens.
The remedy for such
problems should be a different device, such as a cooling
off period which would serve to enlarge consumer protection
applications and prohibiting unfair trade.
The French judicial system has a built in device which assures the right to revoke a completed
transaction if it is judged significantly unusual against fair
price and other standards. This clause is not applicable to
normal standard transactions assuring businesses the right
of normal trade. A system like this should be acceptable
to both parties.
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