최근 일본의 친권제한에 관한 개정 논의의 소개 및 그 시사점

Abstract

Under the positive law of the Civil Act, parental right is not only parent’s right but also parent’s duty provided to the parents for the purpose of welfare of child, so child abuse is definite abuse of parental right which endangers welfare of child by neglecting this parental duty. Therefore, the government which is responsible for the protection of child has to intervene to take some measures against this kind of abuse. Even though the termination of parental rights under the Civil Law is a central clause which reflects and expresses governmental duty, it actually doesn’t play an effective role in resolving such matters like child abuse due to the limitation itself. Considering the fact that child abuse is mainly done by the parents and the variety of the child abuse cases, it is necessary to make some regulations to limit parental rights, for example, if the case is related to child safety such as medical neglect, parental rights should be limited for a certain period of time. When it comes to Japan, like us, most of civil clauses including termination of parental rights don’t work effectively even though the restricted parental rights are needed to protect child from parent’s inappropriate act like child abuse. Therefore, since 2009, the Japan government has profoundly reviewed and discussed parental rights including the restriction of parental rights such as the partial restriction or temporary termination of parental rights to confront child abuse effectively in the viewpoint of child welfare and as a result of those efforts, the amendments of parental right law will be submitted to the National Assembly in 2011. Since our situation regarding parental right law regulating child abuse cases is not so different from that of Japan, it could be effective for us to refer to the case of Japan introduced in this study in renovating our parental right law, including the introduction of a new system on the restriction of parental rights. In the meantime, it is also important to build a national consensus to review the requirements of the restriction of parental rights, to introduce flexible and effective systems of the restriction of parental rights by easing off the requirements and effects of the announcement of the termination of parental rights, and to consider the system of guardianship to take a responsible for nurturing of the child after restricting parental rights. In addition, in revising parental law, several considerations should be taken into such as careful review on the termination of parental rights, the introduction and modification of partial or temporary restriction of parental rights under the judgment of family court, and the rearrangement of the system of guardianship which is subsequent measure of these regulations. More specifically, it would be right to regulate the cause of termination of parental rights to be based on the effectiveness of protective measures and realization of child welfare not on parent’s liability which is under Act 924 of Civil Law. In addition, when introducing the temporary termination of parental rights, several matters, such as, the reason why it is needed, the person who applied, how long it will be, the reason why it is cancelled, should be considered at the same time. Especially, in limiting parental rights, the court should intervene positively and supportively for the purpose of reunion of parental rights, and it is imperative to consider the cooperation through the close connection with administrative agency such as national child protection agency. In other words, it is significant to implement the effective connection between the exertion of the administrative power and judicial procedures. More than anything else, when putting this new regulation into effect, each regulation should be specified first, and the restricted parental rights and the right of guardian who will act on behalf of parent should be specified as well.