자녀의 복리를 위한 일본 가사사건절차법상의 배려

Abstract

In a dispute settlement process for parent's divorce which makes a direct andcritical impact on their children's lives, minor children are not the concernedparties of the case. However, it is not deniable that children take an importantpart equivalent to the concerned parties because they are influenced by the resultof judge's decision. Therefore, even though parents are the concerned parties, it isadmitted that, for the cases that may give a significant impact on their children,it is necessary to make efforts to find out the opinion of the children but alsoexplain them fully the process and result of such legal procedure. Furthermore,it is very important in the aspect of procedural guarantee. In Korea, however,there is no legal mechanism to respect children's independent personality, checka solution to the best benefit of children, express independently an opinion fromthe point of children's view and claim their legal benefit. Meanwhile, from the viewpoint of considering and respecting children'sopinion during family case procedures that may give any impact on children,Japan established several regulations in the Family Dispute Procedural Act enforcedsince 2013 such as a newly established regulation that family court may select a 'child's representative' in consideration of child's procedural guarantee. First, it admitted non-contentious ability of children in specific cases andallowed non-contentious behavior as an interested participant. Second, it definedthe cases in detail that require hearing the statement of children (limited tothe children over 15 years old) in family dispute procedure. Third, in order toguarantee the effectiveness of the regulation for hearing child's opinion, child'sprocedural guarantee was reinforced through introducing the regulation thatfamily court may select a 'child's representative'. In the cases that give significant impacts to children after the divorce oftheir parents such as designation and change of person with parent rights, legaldisposition and its change for bringing up children or visitation right for minorchildren, Korea should, as Japan did, pay attention to securing child's rights bytreating a child as a principal agent rather than a procedural subject. On the premise of this, it is necessary not only to provide an opportunity foropinion statement to child by admitting the nature of concerned party to childbut also, as an extension of this, to establish a system for special representativewho will represent children during the procedure in order to involve the childin the procedure. In Korea on October 15, 2014 [enforcement date: October16, 2015], the temporary suspension of parental right system (the Civil Code §924) and the partial restriction system (the Civil Code § 924-②), which wereminimum measures to restrict parental rights to protect child's welfare for eachdetailed case of parental abuse behaviors, were introduced besides the terminationof parental right system (the Civil Code § 924) that would make it possible todeprive the whole parental rights. By establishing this system, it became possibleto make flexible and efficient countermeasures against various parental right abusecases, such as child abuse, in a big frame of family protection and the integrationof parent and children. However, in order for such useful system to be settled asan effective system, the child's right should be guaranteed by treating the child as a principal agent, not as a procedural subject, in the legal procedure. For this,active hearing of child's opinion and the introduction of special representativesystem that supports such listening is more urgent than anything else.