미성년자녀의 재산에 대한 친권자의 대리권 행사범위와 그 한계 ―독일, 프랑스, 일본법과의 법제 비교를 중심으로―

Abstract

In Korea, minors are persons with limited ability to act, and legal acts committed by minors can be canceled without the consent of their parents(Article 5 of the Civil Code). Therefore in order for minors to make any legal action effective, the consent of the legal representative must be obtained or the legal representative must act on their behalf. Since legal representatives of minors are their parents in principle, they have the right to consent to the legal actions of their children and represent their children(Article 920). However they have very broad discretion. Therefore it is necessary to limit their authority. There are several ways it can be limited. We can apply the rule of conflict of interests(Article 921) or the rule of the abusing agency in Korea. However these are not enough solutions to protect children. Therefore, in order to find better legislation in foreign legislation and to help us interpret and improve our laws, the writer conducted comparative studies with Japan, Germany, and France. After examining the legislation, the writer found that in Germany and France, with respect to legal transactions for children, parents shall obtain the family court’s prior approval. So why not introduce this system, such as Germany and France, with respect to legal transactions for children, under our current law? The writer finds it difficult to introduce this system for the following reasons : First, the utility of the system has the advantage of directly restricting the legal representation of parents, while in principle imposing civil administrative restrictions on exercise of parental authority. However, the expansion of these court’s administrative restrictions should be vigilant. Second, it is too excessive in that it fundamentally blocks parental autonomy to get a permission from the family court, in principle, from disposing of property owned by children. Third, the paternal authority shall be distinguished from the power of the guardian, and the court's intervention in this shall not be recognized in principle but only exceptionally if necessary. And then what solutions should be taken to protect children? First, it can be imposed parents the duty of care of a good manager regarding the exercise of the parental authority. Parents who violate their duty may be liable for damages. Second, regulations should be made to expand the performance of underage children so that they can manage their own property. Finally it is necessary to introduce a foreign legal system that treats minors as adults in several cases such as a Children's liberation.