아동권리협약의 재판규범성

Abstract

United Nations Convention on the Rights of the Child(hereinafter ‘UN CRC’) did not receive consent to ratification from the National Assembly even though it fully deals with children's rights. The domestic legal effect of UN CRC became unclear due to the belief that the treaty has the same effect as the act by the National Assembly's ratification consent. However, in light of the process of adopting UN CRC and the process of changing the international perspective on the rights of children, recognizing children as the subject of rights and guaranteeing them by the state should be seen as a general principle and universal legal norm in the international community today. Therefore, it should be considered that UN CRC is generally an approved international law and has the same effect as the act. In recent years, there have often been cases in which the judiciary explains the contents of UN CRC as the reason for the ruling, but in absolute figures, it is still insufficient. It is rare to directly apply the provisions of UN CRC in deriving the conclusion of the case. Nevertheless, it is encouraging that UN CRC has been mentioned in various litigation fields, from family litigation to criminal, civil, and administrative litigation. The fact that UN CRC has rarely been directly applied is based on the argument that the contents of UN CRC overlap with the provisions of related laws or that the contents of UN CRC are not suitable for direct application. However, the overlap of the contents of the regulation corresponds to the basis for supporting the coexistence application of the regulation, and is not the basis for supporting the exclusion of UN CRC. Restrictions in nature are also ideological standards, so they are not conclusive criteria for determining whether UN CRC can be directly applied in actual cases. Efforts are needed to directly apply UN CRC, even in response to the constitutional request of respecting international law.