친권의 제한·정지 제도 도입을 위한 검토사항

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.