Earticle

초록

영어

The temporary custody measures means protecting children temporarily by separating parents and child in emergency situations where the safety is in danger and it is a short-term measures that can be made against the decision of the person with parental right. This may disturb the rights of a person with parental right or fosterer and the situation of the parents strongly demanding to hand over the abused child by insisting on parental right is created. Therefore, a temporary custody measures must be made only in urgent cases where a serious injury can be inflicted on the child if parents and child is not separated except for cases of having consent from a person with parental right, and so on. And it is desirable to shorten the time period as much as possible for the welfare of child. Like the emergency custody system adopted by Juvenile Law of United Kingdom, deciding the requirements, time period, and responsibility of supervisor, etc specifically would also become an important legal device. Also, the dispute of Japan concerning restriction of visits and communication of abusive parent on the abused child during temporary custody period seems like an issue which must be seriously considered and solved even in our law.
Meanwhile, the most crucial thing as an improvement plan of temporary custody system is the fact that a system to make decisions in the aspect called the welfare of children has to be prepared by the intervention of the court having guarding and supervising functions even for the fostering of the child under temporary custody like in Germany, United Kingdom and U.S.A. But because temporary custody is an measures made in emergency situations where a serious damage on life and physical body of the child, it isn't easy to request a prearranged participation of the court and its effectiveness can also become a problem. But in the standpoint of guaranteeing legal procedure and according to the object of children's rights agreement, an ex post facto approval of the court has to be obtained as soon as possible after the temporary custody measures.
When a person with parental right or fosterer raises objection and requests to hand over the child after the temporary custody measures is made, it is desirable to make decisions by judging the present condition or situation of the child and abusive parents. In other words, in case of deciding that a danger toward the welfare of child will not be caused and there is no concern of abuse or mistreatment because the fosterer has made enough improvement, the child has to be sent to the original home after ending the custody and guidance. On the other hand, when it has been decided that there is concern of abuse being recurred or welfare of child being disturbed if sent back home, the temporary custody has to be continued by getting the approval of family court.
A supportive system in which the management and supervision on the child continues until a long-term protective measure is taken for the safe protection of the child or for the child to return home safely like in the United States has a high value for import even seen from the welfare aspect of the child. And once a certain action is taken by the court, restricting the fostering rights of the parent during that time and an applicant or a suitable person taking care of the child by having the fostering rights like in United Kingdom would have to be solved by legislation. At this time, the regulations based on civil law must be prepared like in Germany while restricting parental authority or fostering rights.
Based on this facts, the court would have to decide on assuming various methods of restricting parental authority considering various specific situations in general from the cases in which the welfare of child is disturbed. At least while an abused child is getting the temporary custody arrangement, it is desirable to consider the head of child custody specialized agency or child welfare facility that has received authorization from mayor or governor as having certain authority related to the details on fostering of the child.

목차

Ⅰ. 머리말
  1. 아동학대의 의의와 현황
  2. 우리나라 일시보호제도의 개관
  3. 우리나라 일시보호제도의 문제점
 Ⅱ. 일본의 일시보호제도
  1. 의의와 필요성
  2. 일시보호와 친권의 제한
  3. 일시보호의 문제점과 개선책
 Ⅲ. 영미법상 일시보호제도
  1. 미국
  2. 영국
 Ⅳ. 독일의 일시보호제도
  1. 개관
  2. 아동복지국의 긴급일시보호조치
  3. 일시보호와 친권의 제한
 Ⅴ. 맺음말 - 우리 일시보호제도의 개선방향
 참고문헌
 [Abstract]

키워드

아동학대 일시보호 친권 양육권 친권의 제한 아동복지법 가정법원 긴급보호명령 긴급분리심리 피학대아동 친자분리 아동복리 child abuse separation of child and parents temporarily protection limitation of parental right Child Welfare Act family court emergency protection order emergency removal hearing abused child parental right custody child welfare

저자

• 박주영 [ 법학박사, 숙명여대 강사 ]

참고문헌

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