유엔장애인권리협약상 장애인의 자립생활과 발달장애인의 탈시설 — 유엔장애인권리위원회의 일반논평 제5호와 탈시설가이드라인을 중심으로 —

초록

Article 19 of the United Nations Convention on the Rights of Persons with Disabilities states that people with disabilities, like others, have the right to live in the community at their own choice, have the right to choose the place of residence and housemate, and should not be forced to live in a specific type of residence. However, the UN Committee on the Rights of Persons with Disabilities’ General Comment No. 5 and the Guidelines for deinstitutionalization regarding this regulation are unrealistic and tyrannical in that they force all the people with disabilities to de-institute, close existing facilities, and prohibit the installation of new facilities without taking into account the extreme differences in the economy, society, culture, infrastructure, and community services among countries. Above all, ignoring persons with severe disability because they cannot speak out on their own is another discrimination against the people with developmental disabilities, who are the weakest among the people with disabilities. In fact, even in countries that have led the deinstitutionalization, large facilities still exist, and the number of people re-entering facilities because they did not receive adequate support after the deinstitutionalization is constantly increasing. In Korea, there is a trend of people with disabilities who have died due to the absence of support after the deinstitutionalization. The UN Committee on the Rights of Persons with Disabilities’ enforcement of deinstitutionalization for all the people with disabilities goes against the social conventional wisdom that “there are no rules without exceptions,” and goes against the principle of excess restriction under the Constitution. Therefore, the UN Committee on the Rights of Persons with Disabilities should make a reasonable interpretation of Article 19 of the Convention on the Rights of Persons with Disabilities, taking into account that the circumstances faced by persons with disabilities vary widely from country to country and that the type and degree of care for them differ depending on the type and degree of disability. In other words, the committee should either discard General Comment No. 5 and the guidelines for deinstitutionalization or revise them in accordance with reality. Korean legislators do not need to blindly enact a deinstitutionalization Acts because the general comment No. 5 and the deinstitutionalization guidelines have the nature of interpreting the UN Convention on the Rights of Persons with Disabilities and are not binding.

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