친권에 관한 비교법적 고찰 —친권의 행사와 제한을 중심으로—
A comparative study on Parental Right —Focused on the execution and restriction of Parental Right—
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Family laws in our country are unified for the first time and took the systematic form by the enforcement of the Civil Code in 1960, but it was the incomplete law by birth as it was established on the foundation, which applied the Japanese civil laws as is over three times to the base of the clan code system. In addition, the social and economic effects of the rapidly changing modern society might influenced on the family society, first, which might bring in the inevitable changes across all the family laws such as Family Relationship, Marital Relationship, Parents-Child Relationship, Relative Relationship, Inheritance Acts, etc. Through the several times of extensive amendments in family laws, they have been changed from the laws based on the premodern custom to the norms realized the major parts of modern family law philosophy, but its system and contents do not have accommodated all the reality kept changing. Particularly, the violation of the rights, which threaten the mind, body and life of the children and incurs the damage to the property, are frequently committed by the parents, who should protect their children. This might be considered as serious acts of violation against the ‘children's welfare’ and ‘children's best interest’, the basic principals of the family laws, which jeopardize the foundation of family laws. The parental right does not have the nature of dominative rights anymore, which considers the children as the belongings of the parents, but is being changed to the nature of the responsibility and duty of the parents for the children. In these reality, in the event that the exercise of the parental rights would be apparently against the interests of the children, strong restriction on the parental rights against the exercise of such rights becomes necessary to protect the safety and interests of the children. In this respects, this article intented to examine the case of legislation in each country and to find the system to have effectiveness on the exercise and restriction of the parental rights.
Abstract
Family laws in our country are unified for the first time and took the systematic form by the enforcement of the Civil Code in 1960, but it was the incomplete law by birth as it was established on the foundation, which applied the Japanese civil laws as is over three times to the base of the clan code system. In addition, the social and economic effects of the rapidly changing modern society might influenced on the family society, first, which might bring in the inevitable changes across all the family laws such as Family Relationship, Marital Relationship, Parents-Child Relationship, Relative Relationship, Inheritance Acts, etc. Through the several times of extensive amendments in family laws, they have been changed from the laws based on the premodern custom to the norms realized the major parts of modern family law philosophy, but its system and contents do not have accommodated all the reality kept changing. Particularly, the violation of the rights, which threaten the mind, body and life of the children and incurs the damage to the property, are frequently committed by the parents, who should protect their children. This might be considered as serious acts of violation against the ‘children's welfare’ and ‘children's best interest’, the basic principals of the family laws, which jeopardize the foundation of family laws. The parental right does not have the nature of dominative rights anymore, which considers the children as the belongings of the parents, but is being changed to the nature of the responsibility and duty of the parents for the children. In these reality, in the event that the exercise of the parental rights would be apparently against the interests of the children, strong restriction on the parental rights against the exercise of such rights becomes necessary to protect the safety and interests of the children. In this respects, this article intented to examine the case of legislation in each country and to find the system to have effectiveness on the exercise and restriction of the parental rights.
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