개정 민법상 친권제한제도의 평가 및 향후 과제 - 일본과의 비교를 중심으로 -

Abstract

For cases where a legal guardian abuses their child, or especially for cases where, based on religious reasons or personal beliefs etc., harm to the livelihood, physical body or assets of the child occurs, there have been discussions up until now that the parental rights of the legal guardian must be limited to ensure the welfare of the child. As a result, in 2014, in order to increase the effectiveness of child protection from various forms of parental right abuse that infringes upon the welfare of children, civil law has been revised to provide parental right limitations according to the basis and severity of the infringement, which enables each case to be handled separately and appropriately. In other words, by making clear that the previous declaration of termination of parental rights policy is the absolute last measure, a new policies that enforce a weaker measure of restriction in the forms of temporary termination of parental rights and declaration of partial limitations of parental rights were implemented, with the substitution of parental rights through a legal trial system as the lightest measure. However, regarding the conditions and the persons entitled to the parental rights and the enforcement methods etc. of the revised civil parental right limitation policy, the following issues need to be addressed. First, because the condition of ‘'when the father or mother abuses the parental rights and significantly harms the welfare of the child, or when there is a possibility of harm’' is equally applied to both the loss of parental rights and declaration of temporary suspension, there is the issue of clarifying how these two policies will differ in their enforcement and implementation. Second, there is no way to declare loss or temporary suspension of parental rights in cases where, although there is no abuse of the parental rights by the legal guardian, there is a possibility of significant harm being inflicted to the welfare of the child. Third, when determining the duration for the temporary suspension of parental rights, there is a need for the conditions to explicitly detail the most important factor, which is ‘'the expected time regarded to be necessary for the cause of the parental right termination to expire’'. Fourth, underage guardians and supervisors of guardianship must be added to the candidates that have claim to parental rights. Fifth, for the expedited processing of parental right partial limitation policy utilization by the courts, there needs to be detailed articulation, or in other words specification of special conditions that constitute reason for limitation. Sixth, because securing underage guardians is the most important factor for the parental right limitation policy to be successful, there is a need for the law to be revised towards recognizing multiple guardians and supervisors of guardianship. Implementing a new parental right limitation policy in a newly revised civil law is very significant from the perspective that it strengthens child protection. Japan, which has implemented parental right termination trials 2years ahead of us is currently showing positive reviews of the policy. We also need to make academic and legal efforts to ensure that the revised law can take full effect, and especially because it must effectively operate this policy through appropriate and expedited processing, the role of the court in this policy is very important.