자녀의 복리와 친권법의 과제

Abstract

The welfare of children is a dominant principle in the area of a parental right law all over the world. The author of this paper tried to look into the Korean parental right law in the view point of welfare of children. The Korean parental right law has been changed to the direction of the welfare of children, and it will continue to change to the better way. For the future reformation of the Korean parental right law, the author suggested as follows. First, it is necessary that the law provide the exemption of parent’s consent to the children’s marriage or marriage engagement under some circumstances as the new article of adoption(article869), or the law apply the new article 869 correspondingly. And when the child reaches sufficient understanding and intelligence to be capable of making up his mind on the essentially personal matter in question, the consent of parent should yield to the child’s decision. Second, it is desirable that the holder of physical custody has the power of legal custody also. And if a third party holds physical custody, the court should give him or her some power of legal custody in sofar as it is demanded for the child’s care and protection. Third, the extent of access right needs to be widen to the people who has the intimate ties with the child. Generally a compulsory access is not good for the welfare of children, so it should be admitted under very limited condition. Fourth, the new law provides the advice of specialists who represent the child’s opinion on the decision of parental right(article 912). But the advices should be also given in the decision of custody and access right. And to protect the children in the process of divorce and in other civil process, the system of separate representative of Korean Civil Law should to be improved.