친권의 본질에 관한 검토 - ‘친자법’과 ‘혼인법·이혼법’의 관계 재정립 -

Abstract

The United Nations Convention on the Rights of the Child, UNCRC, is intended for children aged less than 18, and recently, children’s status has improved up to the subjects of human rights, not the objects of protection. Historically, sons and daughters in their minority (or majority, in some cases) have been the objects of Patriarchal Authority. In the meantime, the discussion on the Parental Authority has been conducted with a sustained effort to get out of paternalism, and as a result, the Parental Authority expressed as ‘a Right’ has been expressed as ‘a Right and Obligation.’ The Korean civil law regards a person as an subject of rights and obligations during his or her life. Likewise, of course, an underage child is a subject of rights. From a historical perspective some rights and authority may have been reflected in the Parental Authority, but basically an underage child is an independent subject of rights and obligations just the same as his or her parents. Parents and their children are relatives who have mutual rights and obligations. A parent and a person with Parental Authority do not always have the same rights and obligations. In case a person with Parental Authority abuses his or her right, he or she may forfeit his or her Parental Authority. However, he or she is not stripped of his or her parental status. It is not easy to find a right and obligation, excluding the Parental Authority. A right can be relinquished, but there is scarcely a man but relinquishing his or her Parental Authority. A parent has the Parental Authority for his or her underage child and has an obligation to nurture his or her child, and accordingly he or she is given responsibilities and duties such as Right and Duties to protect and educate Child (Article 913), Right to Designate Place of Residence (Article 914), Right to Take Disciplinary Action (Article 915), Child's Peculiar Property and Management thereof (Article 916), Right of Representation by Person of Parental Authority with respect to Child's Property (Article 920), Consent Right to the Legal Act of an Underage Child (Clause 1 of Article 5), Revocation Right of the Legal Act of an Underage Child (Clause 2 of Article 5), Endorsement Right (Article 143), Obligation to Supervise the Illegal Act of an Underage Child (Clause 1 of Article 755), Right to Allow Adoption (Clause 1 of Article 869), Right to Designate a Guardian for an Underage Child (Article 931), etc. A parent’s rights, obligations, responsibilities and duties regarding the nurture of an underage child are generally defined as ‘Parental Authority’. In addition, a parent having such rights, obligations, responsibilities and duties is defined as ‘a person with Parental Authority’. Thus, it is reasonable to view the nurture-related rights, obligations, responsibilities and duties as an authority come from the status of a person with Parental Authority. A view that regards the essentiality of the Parental Authority as an authority is not a novelty. It has already stipulated in Clause 1 of Article 923 of the Civil Code, and lots of previous studies were based on the premise that the essentiality of the Parental Authority was an authority. Just like a representative authority and a business execution authority are from the status of CEO, the authority of a person with Parental Authority can be from the status. Meanwhile, before the revision of the Civil Law it was stipulated in Clause 5 of Article 909 of the Civil Code: “In case a woman has divorced her husband or reinstated in her original family or remarried after the death of her husband, she may not have Parental Authority for the children born during the marriage with the divorced or dead husband.” The past stipulation has considered the person with Parental Authority apart from the nurturer, and also such a notion seems to still remain.