장애인권리협약 제19조의 해석과 탈시설 정책의 한계 — 발달장애인에 대한 자립생활 적용을 중심으로 —

초록

This paper aims to critically examine the validity of deinstitutionalization policy based on the interpretation of Article 19 of the Convention on the Rights of Persons with Disabilities (CRPD). While Article 19 guarantees the right of persons with disabilities not to be obliged to live in a particular living arrangement and to live independently in the community on an equal basis with others, it does not explicitly mandate deinstitutionalization. Nevertheless, the Committee on the Rights of Persons with Disabilities has interpreted Article 19 as a normative basis for deinstitutionalization through General Comment No. 5 and the Guidelines on Deinstitutionalization. This paper examines whether such interpretations go beyond the text and purpose of the Convention, and analyzes the applicability of the concept of independent living, particularly to persons with developmental disabilities. Due to limitations in cognitive and communicative capacities, the exercise of autonomy and self-determination by persons with developmental disabilities may be structurally constrained. In such cases, choices made without sufficient support and protection may lead not to freedom, but to neglect. Furthermore, this study explores practical issues arising after deinstitutionalization, including social isolation, reinstitutionalization, and the lack of adequate community-based support systems. It argues that deinstitutionalization cannot automatically be equated with the enhancement of rights. The paper also challenges the dichotomous understanding of institutions and communities, emphasizing that the right to choose one’s residence should be realized through the provision of substantive support rather than the exclusion of specific living arrangements. In conclusion, the state should fulfill its legal and institutional responsibilities to ensure that adequate protection and support are provided in the living arrangements chosen by persons with disabilities, prior to promoting deinstitutionalization policies. Such responsibility constitutes a core element of the realization of the rights of persons with disabilities.

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