개정 미성년후견제도의 입법상의 문제점에 대한 반성 ―자기 폐쇄적 민법연구 실태의 반성을 겸하여

초록

Policy makers or legislators in Korea have set up the policy of state’s intervention into the exercise of parental responsibility for the protection of children even in the cases where the relationship of parents and children are not so much broken down as to the extent that parental responsibility has to be deprived or restricted. In this regards, criminal provisions, civil law provisions and administrative provisions can be considered as the tools for the execution of the said policy. This paper deals with the reform of minor guardianship system, the purpose of which is the protection of abused and neglected children, and examines whether or not the reformed minor guardian- ship system is closely related to other legal provisions supporting the operation of minor guardianship system. As a result, this paper criticizes that the reform of minor guardianship system was irrelevant to other legal provisions so that the policy aim of minor guardianship system was not reflected in criminal law protection provisions and administrative law protection provisions, meaning that it diminishes the policy effect. Moreover, the reform of minor guardianship system was not reflected in the Family Law Procedure Act so that there are deficiencies in procedural law in terms of materializing substantive law protections. This paper suggests that temporary suspension, and partial restriction, of parental responsibility are to be included in criminal law provisions and admini- strative provisions relevant to the restriction and deprivation of parental responsibility, that provisions on cumulation of non contentious family law claims and relevant jurisdiction should be enacted in the Family Law Procedure Act so as to incessantly ensure the protection of children, and that civil law provisions on starting the minor guardianship procedure on court’s own motion are to be deleted unless many relevant provisions in the Family Law Procedure Act shall be enacted to efficiently support the starting the procedure on court’s own initiative.

키워드