현대적 친권 개념에 대한 검토 -이혼 시의 친권을 중심으로- = A Review of the Modern Concept of Parental Authority -Focusing on Parental Authority in Divorce-

다국어 초록 (Multilingual Abstract)

Article 909 (4) of the Korean Civil Code stipulates, “If parents divorce, parents must determine a person with parental authority by consultation. If agreement cannot be reached or no agreement is reached, the family court shall designate a person with parental authority ex officio or at the request of the parties.” In the case of a divorce by agreement, it is stipulated that parents can decide parental authority. This ultimately applies to divorce by trial.
In modern society, the other name for parenting responsibilities and parenting obligations for parents’ children is parental authority. From the ancient Roman era, when this parental authority was called father’s rights, to the United Nations Convention on the Rights of the Child in 1989, not only the name but also its meaning has changed completely. Parental authority now has greater weight on the parents’ duty to protect the welfare of their children rather than on the parents’ right to their children.
Despite this modern concept of parental authority, the Korean Civil Code, since its revision in 1990, still stipulates that divorcing parents can determine the person with parental authority through agreement. Articles 909 (4) and (5) of the Korean Civil Code do not fit with the modern concept of parental authority, do not faithfully fulfill obligations as a ratifying country of the Convention on the Rights of the Child, and have the problem that parents who only have custody actually exercise parental rights.
France and Germany are already discussing the issue of joint custody beyond discussing joint parental authority. We must also revise the Civil Code to apply the principle of joint parental authority to divorced parents as well as to married parents.