북한 아동권리보장법에 투영된 북한 민법의 특징과 평가

Abstract

This paper evaluates the characteristics of North Korean civil law projected in this law by examining the legal nature, basic principles, and civil regulations of the North Korean Children's Rights Protection Act, and based on that, presents what are the acceptable factors and the limits in integrating of the two koreas' civil laws. North Korea joined the United Nations Convention on the Rights of the Child in September 1990, and in December 2010 enacted the Children's Rights Protection Act to maximize the rights and interests of children in all fields. In Chapter 2 of this Act, which defines children under the age of 16 as children, there are civil provisions related to children's personal rights, such as the right to life, the right to development, and the right to a name. In the Chapter 4 of this Act, there are the children's right to be nurtured and education, the state guarantee for the right, the prohibition of punishment of children at home, the fostering and adoption of children, and the children's inheritance rights. And the chapter 5 stipulates about civil regulations on education to prevent divorce, the decision of children custodian at the time of divorce, and the responsibility of children support. The Children's Rights Protection Act has the characteristics of a special law on the civil law, the family law, and the inheritance law, in addition, this Act has a public law character in that it deals with civil relations surrounding children as part of the governing relationship, and at the same time has characteristics as a human rights law in that it regulates children's rights with a focus on human rights. Meanwhile, this Act stipulates basic principles such as the guarantee of children's equal rights, the principle of valuing children, the collectivism, and the observance of international law. The characteristics of this Act are that it contains the provisions of North Korea's substantive civil law, that the guarantee of children's rights is just cursory, that the protection of human rights for children becomes a factor in human rights violations at the same time, and that collectivism is emphasized. Therefore, these factors are leaving this law only a shell, and as a result, there is a big gap between the law on the protection of children's rights and the actual reality. As the basic principles of the Civil Law for Unification of North and South Korea are the principle of equality of legal personality, the principle of respect for individual will, and the guarantee of equal rights, regulations that violate these basic principles should be excluded from the integration of the civil law system of the two Koreas. Consequently, it must be abolished that are the provisions of specifying collectivism(Article 16), the State's involvement in the upbringing and education of children(Article 41), the provisions of excluding those deprived of the right to vote from the status of adoptive parents(Article 45). In addition, the denial of private property rights in inheritance rights (Article 46), the regulation of preventing divorce(Article 54), including the North Korean civil law theory that interprets the legal status of children as a tool of the 'Juche' ideology, should also be excluded. Among the North Korean Children's Rights Guarantee Act, the provisions on the protection of children's personal rights, the prohibition on punishment of children at home, and the provisions on fostering children are provisions that are worth to consider for acceptance into the Unification Civil law.