미국에서의 미성년후견인의 권한과 책임

Abstract

This article explores the guardianship of minors in the United States, focusing on powers and duties of guardian of minors. And it intends to seek legal implications for the Korean Civil Code in this field. The legal system of guardianship of minors in the United States is significantly different from that in Korea in two important aspects. First of all, the Korean Civil Code does not permit joint, or co-guardianship. By contrast, most states in the United States permit more than one guardian to be appointed for a single child. And two or more guardians may serve jointly, as do parents, or they may serve in different capacities, with one or more being the guardian of the person and the other or others guardian of the property. Secondly, although Article 937 of the Korean Civil Code lists persons who are disqualified from serving as a guardian, the Code does not have any provision stipulating factors or requirements that a court should consider when it determines a guardian of a minor. On the other hand, in the United States, courts look at various factors in determining a guardian of the minor in light of the best interest of the child. These factors include an individual's capacity to manage property and finances, continuity of care, religious persuasion, and so on. Given the importance of the well-being of children in modern public policy in this field, the Korean Civil Code dose not seem to protect children in an effective way, such as when a conflict of interest exist between guardian and minor with property. In this regard, it is necessary to revise the Korean Civil Code in light of the best interest of the child.