離婚에 있어 親權 및 養育責任問題에 대한 새로운 접근 - ‘養育權’의 法定化 논의를 위하여 -

Abstract

This article makes a study of a fresh approach on the parental authority and the responsibility of rearing children. In recent Korean society as the divorce increases, the minors are confronted with various dangers. Therefore in order to safeguard the children, we should make the better ‘Domestic Relations Law’ and ‘Child Welfare Law’. Because of parents' divorce, their children are left in dangerous circumstances. In this paper I want to examine the methods how to safeguard their minor sons and daughters through the enacted Civil law and the existing Civil law, judicial precedents. In view of so far achieved that I examine the origin and development of Korean Civil Law(especially ‘Domestic Relations Law’), ‘Parental authority’ and ‘Authority of Rearing’ to the minority took a serious view of paternal authority. The First enacted Korean Civil Law that has been in operation on 1st Jan. 1960, prescribed as follows: “A child who is a minor shall be subject to the parental power of his or her father with whom the child is residing.”(Article 909①); “In case an agreement has not been made on matters concerning fostering and education of the children born between the parties, the father is responsible for fostering and education of their children.”(Article 837①). But in accordance with the trend of the contemporary times--that is to say “equal rights for father and mother, equality of the both sexes, generalization of divorce, deepening in the study of children etc.”, I make a decision that the ‘Authority of Rearing’ Provision should be prescribed in the ‘Domestic Relations Law’ for the relative intensification of the right of ‘Authority of Rearing’.