친권의 제한·정지 제도 도입을 위한 검토사항 = Several Issues to implement the Bill to Introduce the Legal Measures of Restriction and/or Suspension of Parental Right

다국어 초록 (Multilingual Abstract)

When any question with respect to the upbringing of the child matters, the child’s Interest should be the court’s paramount consideration. In this respect, if the physical, mental or spiritual welfare or the property interests of a child are in danger, it is needless to say that the necessary protective steps be taken to protect the child. According to Civil Code Art. 924, if a father or mother abuses parental authority or if there is gross misconduct, the family court may, on the application of any relative of the child or a public prosecutor, make a ruling that strips the father or mother of his/her parental authority. Although such a order result from various causes, the main cases are abuse of parental care: mistreatment, serious educational deficits, sexual abuse, negligence of the child (malnutrition, no medical treatment), and inadvertent behaviour of the holder of parental care. Regarding such variety of cases flexible measures is to be prepared for the Family Court to take depending on the situation. But the current law has only one institution of the total revocation of the parents' legal custody, moreover, the circumstances of the execution of this measure must satisfy the condition of proportionality. In this respect the Family Court is to be allowed to order various actions proportionate to the impending danger. The bill is prepared to solve this problem. Firstly, as far as a consent of the holder of parental responsibility is deemed necessary, it is accepted that the court may substitute the consent if the parent unreasonably refuses to give it. Secondly, this bill does not specify the contents of restriction on the ground that the Family Court enjoys a broad discretion to make the appropriate orders. These may range from orders on specific issues, modification of custody to placing the child under institutional care. Thirdly, although this bill keep the Termination of Parental Right System, it relocates this as a matter of last resort. Fourthly, althought the right to request the intervention to parental authority in the circumstances is attributed to only anyone of relative of the child and a public prosecutor under the current law. To be sure, it is better to realize the BIC principle to demand no formal application and allow the Family Court to take measures ex officio. But the Bill doesn’t introduce such institution because of an opposite view and the limit of available resources of the Family Court. But it gives the child itself to request the restrictive measures to parental authority, declaring a child is not the subject of the parental right but the partner of the parent-child relation.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 원안의 요지
• Ⅲ. 친권의 정지·제한 제도 도입과 관련된 쟁점들
• Ⅳ. 효과에 관한 검토

참고문헌 (Reference)

• 1 제철웅, "친권과 자녀의 권리의 충돌과 그 조정방향: 자의 인권을 중심으로" 아세아여성법학연구소 (9) : 2006
• 2 박주영, "최근 일본의 친권제한에 관한 개정 논의의 소개 및 그 시사점" 한국가족법학회 24 (24): 363-402, 2010
• 3 윤진수, "부모의 자녀 치료거부 문제 해결을위한 입법론" 법조협회 62 (62): 40-98, 2013
• 4 "법무부 친권제한·정지제도 도입 개정위원회, 회의일지(제1차~제4차), 미공간 자료"
• 5 박주영, "독일과 프랑스의 친권제한제도에 관한 고찰 － 부모에 의한 아동학대사례를 중심으로 －" 안암법학회 (33) : 141-177, 2010
• 6 김상용, "가족법연구 I" 법문사 2002
• 7 最高裁判所 事務總局 家庭局, "親權制限事件の動向と事件處理の實情: 平成24年 1月~12月"
• 8 裁判所, "親權制限事件の動向"
• 9 厚生勞動省, "平成25年度 全国児童福祉主管課長・児童相談所長会議資料"