부모의 자녀에 대한 친권행사와 국가의 통제

The Family, the Children, and the State : The Limit of Parental Authority in Medical and Educational Decision-making

The parental authority is a power to make a decision on their children’s affairs autonomously. It is, however, under the restriction that it should be oriented to the best interest of the children. These two concepts the family autonomy and the best interest of the child might have conflicts with each other. As the 2014 revision of Civil Code and the 2014 enactment of Special Act on Punishment of the Child Abuse introduces new regime which enables the family court to suspend or limit the parental authority and commence a guardianship limited in time or scope, not just deprive parents of all their authority, the chance that these conflicts be under the judicial review expects to increase. In this article, the typical settings of these conflicts, that is, medical or educational decision-making for minor children, their (arguable) resolutions, and the way of argumentation to reach the conclusion would be developed based on the comparative study of the legislation and the case law of Germany, France, and especially the United States of America as well as the analysis of the family autonomy and the state’s duty to protect the child under the Korean Constitution.