Guardian appointment rulings are challenged only by special appeal

1. 01Question

   May an immediate appeal be filed only against the ruling appointing an adult guardian or fixing the guardian's scope of authority, apart from the ruling commencing adult guardianship, what remedy is instead available, and what must the first-instance court and the appellate court do when an appeal is filed on that ground alone?

2. 02Holding

   No. Article 43(1) of the Family Litigation Act allows an immediate appeal in a non-contentious family case only where the Supreme Court Rules provide for it, and Article 36(1)(i)(a) of the Family Litigation Rules grants it for the ruling commencing adult guardianship alone, since Article 936(1) of the Civil Act provides that the guardian under Article 929 is appointed ex officio by the family court. Those Rules give no basis for appealing the concurrent ruling appointing the guardian or fixing the guardian's scope of authority, so it may be challenged only by a special appeal under Article 449(1) of the Civil Procedure Act, applied to family non-contentious procedure by Article 34 of the Family Litigation Act and Article 23 of the Non-Contentious Cases Procedure Act. The label the party used does not matter: the first-instance court must treat the appeal as a special appeal and send the record to the Supreme Court, and where the record was instead sent to the family court's appellate bench and received as an appellate case, that court must transfer the case to the Supreme Court, which has exclusive jurisdiction over special appeals.

   Summary of the holding, verbatim

   그렇다면 성년후견의 개시 심판과 별도로 성년후견인 선임 심판 또는 성년후견인의 권한 범위를 정한 심판에 대하여만 즉시항고를 제기하는 것은 허용되지 않는다고 보아야 하고, 이에 대하여는 가사소송법 제34조, 비송사건절차법 제23조에 의하여 가사비송절차에 준용되는 민사소송법 제449조 제1항의 특별항고로써만 불복할 수 있다.

   Unofficial English translation

   If so, it must be regarded as not permitted to file an immediate appeal against a ruling only against the ruling on the appointment of an adult guardian or the ruling determining the scope of the adult guardian's authority, separately from the ruling on the commencement of adult guardianship, and with respect thereto, a challenge may be made only by a special appeal against a ruling under Article 449, paragraph (1) of the Civil Procedure Act, which is applied mutatis mutandis to family non-contentious proceedings pursuant to Article 34 of the Family Litigation Act and Article 23 of the Non-Contentious Case Procedure Act.

3. 03Disposition

   Dismissed Stated in the decision

   재항고를 모두 기각한다. 재항고비용은 청구인이 부담한다.

   Unofficial English translation

   All reappeals are dismissed. The costs of the reappeals shall be borne by the claimant.

4. 04Form of the test

   Elements stated Stated in the decision

   성년후견의 개시 심판과 별도로 성년후견인 선임 심판 또는 성년후견인의 권한 범위를 정한 심판에 대하여만 즉시항고를 제기하는 것은 허용되지 않는다고 보아야 하고

   Unofficial English translation

   it must be regarded as not permitted to file an immediate appeal against a ruling only against the ruling on the appointment of an adult guardian or the ruling determining the scope of the adult guardian's authority, separately from the ruling on the commencement of adult guardianship, and

5. 05Factors

   • 제936조 제1항은 ‘제929조에 따른 성년후견인은 가정법원이 직권으로 선임’하도록 규정한다.
   • 가사소송규칙 제36조 제1항 제1호 (가)목은 ‘성년후견의 개시 심판’에 대하여 즉시항고를 할 수 있다고 정할 뿐
   • 그 심판과 동시에 이루어지는 성년후견인 선임 심판 또는 성년후견인의 권한 범위를 정한 심판에 관하여는 불복할 수 있는 근거 규정을 두고 있지 않다.
   • 당사자가 특별항고라는 표시를 하지 않았더라도 제1심법원은 이를 특별항고로 다루어 기록을 대법원에 송부해야 하고

   Unofficial English translation

   • Article 936, paragraph (1) provides that 'an adult guardian under Article 929 is appointed ex officio by the Family Court.'

   • Article 36, paragraph (1), subparagraph 1, item (a) of the Rules of Family Litigation merely provides that an immediate appeal against a ruling may be filed against the 'ruling on the commencement of adult guardianship,'

   • and does not have a provision that serves as the basis for a challenge with respect to the ruling on the appointment of an adult guardian or the ruling determining the scope of the adult guardian's authority that is made at the same time as that ruling.

   • Even if a party has not indicated that it is a special appeal against a ruling, the court of first instance must handle it as such and transmit the records to the Supreme Court, and

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2014. 3. 17. 자 2013마2353 결정 참조

   Unofficial English translation

   See Supreme Court Decision 2013Ma2353 decided March 17, 2014.

   Decisions referred to

   대법원 2014. 3. 17. 자 2013마2353 결정

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If the Supreme Court Rules were later amended to grant an immediate appeal against the ruling commencing adult guardianship in a different form, would a challenge to the guardian appointment or scope ruling still lie only by special appeal?

   An amendment to Article 36(1)(i) of the Family Litigation Rules granting an immediate appeal against the ruling appointing a guardian or fixing the guardian's scope of authority would replace the route set out here. A later Supreme Court decision on how an appeal challenging both the commencement ruling and the appointment ruling is to be treated would require this entry to be read again.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.