자녀의 복리 원칙의 의미에 대한 윤리적 접근

Abstract

In exercising parental authority, priority shall be given to the welfare of a child. Furthermore in designating a person of parental authority, the Family Court shall give priority to the welfare of a child. For such purpose, the Family Court may seek counsel from experts in the related fields or social welfare agencies(Civil Act §912). This principle(‘BIC’ hereafter) requires that any decision be decided only by reference to what is best for the individual child, and not by the will, situation, character of parents and Family Court seek to achieve individualized justice in every case. But the BIC is often attacked by legal commentators as being indeterminate and unduly influenced by the courts' unbridled discretion and bias. To meet this critics it is needed to review the meaning and nature of welfare or best interests as used in family law through the lens of normative ethics. It is hard to deny that underlying this debate is the moral philosophy of consequentialism, in particular, some form of utilitarianism. In policy discussions, politicians, citizens, and academics all tend to speak in terms of some variation of “the greatest good of the greatest number,” primarily because such an approach is both accessible and relatively uncontroversial. But the problem is that the approach requires available relevant data. On the contrary, Deontology theory can justify the BIC through the concept of special obligation, admitting that it is morally acceptable to favor significantly one's close relatives and friends as compared to strangers. On the other hand, Virtue theory starts from the critic the presumption that all the parties agree about the definition of the terms ‘welfare’ or ‘best interests’, and that there is therefore no need to question those definitions. On the contrary it seeks to significantly reshape normative legal theory debate. Contending that normative legal theory should be grounded in a neo-Aristotelian philosophy of virtue. But we need not choose one of the normative ethics theories to grasp the ethical meaning of the BIC. Admitting the BIC is concerned with the territory of applied ethics it can be admitted as sufficient to elucidate the rules that can be draw through the overlapping consensus.