美國 家庭法院의 現況과 改善 論議
The Current State and the Reform Movement of the American Family Court
0
조회
0
다운로드
14
인용
0
참고문헌
키워드
초록
This paper reviews the current state and the reform movement of the American family court. The family court serves various functions. Traditionally, divorce was the most important matter in the family court. As the no-fault divorce system was adopted in all jurisdictions of America, the focus was shifted from divorce itself to the division of the property, alimony and protecting the best interest of the child. Recently, dealing with the domestic violence and child abuse became other important function of the family courts. Because of the heavy workload, alternative dispute resolution(ADR) such as arbitration and mediation is widely used in the practice of the family courts. But it is pointed out that the mediation process is structurally unfavorable to the weak party. There is some criticism about the present state of the family court. According to it, judges and other personnel of the family court are poorly specialized and the decisions are often tainted by the gender bias and inconsistent. Some argue the specialized divorce court is the answer to the problem, while others assert that unified family court, which has comprehensive jurisdiction over the family law matters with specialized judges and other personnel, is the best solution. The lesson from the above discussion can be summarized as following. Firstly, the American family court has more comprehensive power than the Korean family court. Secondly, the use of ADR in family law matters is much encouraged in Korea. But the problem of ADR is not well recognized. Thirdly, the specialization of the judges and other personnel is the most important factor for the success of the family court.
Abstract
This paper reviews the current state and the reform movement of the American family court. The family court serves various functions. Traditionally, divorce was the most important matter in the family court. As the no-fault divorce system was adopted in all jurisdictions of America, the focus was shifted from divorce itself to the division of the property, alimony and protecting the best interest of the child. Recently, dealing with the domestic violence and child abuse became other important function of the family courts. Because of the heavy workload, alternative dispute resolution(ADR) such as arbitration and mediation is widely used in the practice of the family courts. But it is pointed out that the mediation process is structurally unfavorable to the weak party. There is some criticism about the present state of the family court. According to it, judges and other personnel of the family court are poorly specialized and the decisions are often tainted by the gender bias and inconsistent. Some argue the specialized divorce court is the answer to the problem, while others assert that unified family court, which has comprehensive jurisdiction over the family law matters with specialized judges and other personnel, is the best solution. The lesson from the above discussion can be summarized as following. Firstly, the American family court has more comprehensive power than the Korean family court. Secondly, the use of ADR in family law matters is much encouraged in Korea. But the problem of ADR is not well recognized. Thirdly, the specialization of the judges and other personnel is the most important factor for the success of the family court.
참고문헌 (64)
- 崔鎭涉, "離婚과 子女" (1993)
- 閔裕淑, "外國의 夫婦財産制度와 財産分割制度 및 扶養制度:美國法을 중심으로", 司法論集, 31 (2000)
- 孫丞瑥, "養育費 算定基準의 具體化 및 養育費 履行確保 方案" (2005), 實務硏究 X
- 尹眞秀, "美國法上 父母의 子女에 대한 治療 拒否에 따르는 法的 問題", 家族法硏究, 18(1) (2004)
- 이준영, "미국에 있어서 혼인법의 전개", 가족법연구, 22(2), pp.183~222 (2008), 한국가족법학회
- 李賢宰, "子의 最善의 利益에 관한 연구 ―미국을 중심으로―", 석사, pp.2003
- 李和淑, "美國의 破綻主義 離婚法에 남아 있는 有責的 요소에 대한 贊反論", 경원대 法學論叢, (5) (1998)
- 韓福龍, "美國 破綻主義 離婚法의 展開, 判例實務硏究 Ⅴ" (2001)
- 한복룡, "전환기의 가족법과 파탄주의 이혼법의 탄생" (2008), 인권과 정의
- American Law Institute, "Principles of the Law of Family Dissolution: Analysis and Recommendations", ~ (2001)
- Berry, Dawn Bradley, "The Domestic Violence Sourcebook", ~ (2000)
- Bryan, Penelope Eileen, "Constructive Divorce", ~ (2006)
- Clark, Homer H., "The Law of Domestic Relations in the United States", ~ (1988)
- Glendon, Mary Ann, "The Transformation of Family Law", ~ (1989)
- Gregory, John DeWitt, "Understnading Family Law", ~ (2001)
- Katz, Sanford N., "Family Law in America", ~ (2003)
- Krause, Harry D., "Family Law in a Nutshell", ~ (2003)
- Sagatun, Inger J., "Child Abuse and the Legal System", ~ (1995)
- Tyler, Tom R., "Why People Obey the Law", ~ (1990)
- Wadlington, Walter, "Family Law in Perspective", ~ (2007)
- Weitzman, Lenore, "The Divorce Revolution", ~ (1985)
- Ｗiehe, Vernon R., "Working with Child Abuse and Neglect", ~ (1996)
- Winick, Bruce J., "Judging in a Therapeutic Key", ~ (2003)
- Babb, Barbara A., "An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective", Indiana Law Journal, 72, pp.775~ (1997)
- Babb, Barbara A., "A Unified Family Court" (2003), Judging in a Therapeutic Key
- Babb, Barbara A., "Fashioning an Interdisciplinary Framework for Court Reform in Family Law: A Blueprint to Construct a Unified Family Court", Southern California Law Review, 71, pp.469~ (1998)
- Babb, Barbara A., "Reevaluating Where We Stand: A Comprehensive Survey of America's Family Justice Systems", Family. Court. Review, 46, pp.230~ (2008)
- Beck et al, "Research on the Impact of Family Mediation" (2004), Divorce and Family Mediation
- Cutsumpas, Lloyd, "Summary Dissolution: Is Connecticut's Current System as Effective as it Should be?", Connecticut Public Interest Law Journal, 6, pp.329~ (2007)
- Ellmam, Ira Mark, "Divorce in the United States" (2000), Cross Currents
- Finn, Peter, "Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse", Fam. L. Q, 23, pp.43~ (1989)
- Geraghty, Anne H., "Unified Family Courts; Tempering Enthusiasm with Caution", Family Court Review, 40, pp.435~ (2002)
- Higgins-Shea, Katharine A., "On the Clock: Should State Law Require Child Welfare Workers to Consider Whether there is Sufficient Time to Obtain Judicial Authorization When Effecting Emergency Removals of Children from Their Parents?", Suffolk University Law Review, 38, pp.147~ (2004)
- Jenkins, Elizabeth A., "Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters", A.L.R, 38(5), pp.69~
- Kempe, C., "The Battered Child Syndrome", Journal of the Medical Association, 181, pp.17~24 (1962)
- Klein, Catherine F., "Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law", Hofstra L. Rev, 21, pp.801~ (1993)
- Levy, Robert J., "Custody Law and the ALI's Principles: A Little History, a Little Policy, and Some Very Tentative Judgments" (2006), Reconceiving the Family
- Melli, Marygold S., "The American Law Institute Principles of Family Dissolution, the Approximation Rule and Shared-Parenting", Northern Illinois University Law Review, 25, pp.347~ (2005)
- Milne, Ann L., "Mediation and Domestic Abuse" (2004), Divorce and Family Mediation
- Milne,Ann L., "The Evolution of Divorce and Family mediation" (2004), Divorce and Family Mediation
- Neely, Richard, "The Primary Caretaker Parent Rule: Child custody and the Dynamics of Greed", 3 Yale Law and Policy Review, 168, pp.1173ff~ (1984)
- Parkinson, Patrick, "The Past Caretaking Standard in Comparative perspective" (2006), Reconceiving the Family
- Radbill, Samuel X, "Children in a World of Violence: A History of Child Abuse, the Battered Child, fourth ed", ~ (1987)
- Ricci, Isolina, "Court-Based Mandatory Mediation" (2004), Divorce and Family Mediation
- Ross, Catherine J., "The Failure of Fragmentation: The Promise of a System of Unified Family Courts", Family Law Quarterly, 32, pp.3~ (1998)
- Schepard, Andrew, "Efficiency, Therapeutic Justice, Mediation, and Evaluation: Reflections on a Survey of Unified Family Courts", Family Law Quarterly, 37, pp.333~ (2003)
- Schneider, Elizabeth M., "The Law and Violence Against Women in the Family at Century’s End: The US Experience" (2000), Cross Currents
- Scott, Elizabeth S., "Pluralism, Parental Preferences, and Child Custody", California. Law Review, 80, pp.615~ (1992)
- Spaht, Katherine Shaw, "Postmodern Marriage as Seen through the Lens of the ALI’s Compensatory Payments" (2006), Reconceiving the Family
- Stolle, Dennis P., "Integrating Preventative Law And Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering", California Western Law Review, 34, pp.15~ (1997)
- Venohr, Jane C., "Child Support Guidelines: Issues and Review", Family Court Review, 43, pp.415~ (2005)
- Westfall, David, "Unprincipled Family Dissolution: The ALI's Recommendations for Division of Property" (2006), Reconceiving the Family
- Wexler, David B., "Reflections on the Scope of Therapeutic Jurisprudence" (1997), Law in a Therapeutic Key
- Winick, Bruce J., "The Jurisprudence of Therapeutic Jurisprudence", Psychology Pubic Policy and the Law, 3, pp.184~ (1997)
- A new family law system, "Australian Government", Government Response to Every Picture Tells a Story, ~ (2005)
- Harrison, Margaret, "Finding a Better Way", ~ (2007)
- House of Representatives Standing Committee on Family and Community Affairs, "Every Picture Tells a Story", ~ (2003)
- Blunting the Sword of Solomon-Australian Family Law in 2006, "Bates,Frank", The International Survey of Family Law 2008 Edition, ~ (2008)
- Chisolm, Richard, "Less adversarial’ proceedings in children’s cases", Family Matters, 77, pp.28~ (2007)
- Family Court of Australia, "Practice Directions No.3. of 2005 - The National Children’s Cases Program", ~ (2005)
- Harrison, Margaret, "Australia’s Family Law Act: the First Twenty-Five Years", 16 International Journal of Law Policy and Family, 1 (2002)
- Nicholls, Serena, "The New Family Dispute Resolution System: Reform Under the Family Law Amendment(Shared Parental Responsibility) Act 2006", Bond University Student Law Review, 3 (2007)
- Nicholson, Alastair, "Family Law and the Family Court of Australia: Experience of the First 25 Years", Melbourne University Law Review, 24, pp.756~ (2000)
- Nicholson, Alastair, "Specialist But Not Unified: The Family Court of Australia", Family Law Quarterly, 37, pp.441~ (2003)