아동복지법상 친권행사 제한 또는 친권상실 선고 심판을 통하여 본 가사소송법의 제 문제

Problems of the Family Litigation Act as seen through judgment of restrictions on the exercise of parental rights or termination of parental rights pursuant to the Child Welfare Act

This article was prepared to the problems of the Family Litigation Act discovered in the trial process regarding restrictions on the exercise of parental rights or termination of parental rights pursuant to the Child Welfare Act. It described the facts which became the premises of the trial, the controversial issues of the trial and the proceedings of the trial. In the target trial, from the viewpoint of the claimant, confirming the person who will exercise the parental rights of the person in question tentatively was important to confirming the legal status of the person in question. As the Family Litigation Act does not have the provisions on restrictions on the exercise of parental rights or termination of parental rights pursuant to the Child Welfare Act, it is unclear whether the above claim is a Family non-litigation Case of Category D or Category E. Considering that the claim for restrictions on the exercise of parental rights or termination of parental rights is a judgment with a confrontational structure, it is deemed to be appropriate to classify it as a Family non-litigation Case of Category E, but to avoid confusion, it is necessary to establish procedural rules pursuant to the Family Litigation Act. Also, there must be grounds for and procedural rules regarding restrictions on the exercise of parental rights pursuant to the Child Welfare Act. The Supreme Court believes that the effect of prior disposition pursuant to the Family Litigation Act will be deemed to occur upon confirmation. The effectuation of the prior disposition may be deferred considerably by the counterpart's immediate appeal and re-appeal. It counters the tentative disposition in cases of urgency. Though on a limited basis, prior disposition must take effect when it is notified. If the effectuation of prior disposition is deferred like this, preservative measures pursuant to the Family Litigation Act may be utilized. However, the fact that preservative measures pursuant to the Family Litigation Act are not recognized in a Family non-litigation Case of Category D, the fact that preservative measures pursuant to the Family Litigation Act can be taken only at the request of the parties concerned unlike prior dispositions, and the relations between prior disposition and preservative measures still need to be discussed further.