친권상실선고절차에 있어서 자의 당사자 적격과 소송능력

A Child’s Standing and Legal Capacity to sue or to be sued in the Termination Proceeding of Parental Rights

This paper focuses on the problems in the korean parental authority law, specifically the problems regarding a child’s standing and legal capacity to sue or to be sued in the termination proceeding of parental rights. For a person who is able to adjudicate Loss of Parental Authority, Korean Civil Act Article 924 provides that “If a parent abuses parental authority or is guilty of gross misconduct, or there exists any other serious reason for not allowing the parent to exercise parental authority, the court may, upon the application of any of the child’s ‘relatives’ pursuant to the provisions of Article 777 or of a public ‘prosecutor’, adjudge the loss of parental authority.” First of all, this article indicates the present Civil Act that a child is under a legal disability and is not competent to personally bring an action on his own behalf, nor defend an action brought against him, but must be represented in such a legal proceeding by a legally authorized person. Second, this article deals with the case that an eleven-year-old boy known as Gregory K. filed a petition in his own name, and with his privately retained legal counsel, seeking to terminate the parent-child relationship with his biological parents. Also this article examines the case that Kimberly Mays, a minor, sued her biological parents to sever all ties with them and any rights, including visitation, they might assert. In essence, these cases sought to “divorce” their biological parents. Third, it deals with the child’s standing and other constitutional issues. Standing in court is a requirement of procedural due process. A minor child should have a right to procedural due process under the Korean Constitution. In Gregory K. case, the Florida circuit court gave him standing by looking at the U.S. Constitutional Rights. The right of court access in U.S. has been recognized as a fundamental right. The right of access to the courts requires “adequate, effective and meaningful” access to court procedures. It is important for minor to get the court to grant him status as a person to bring an action on his own. In custody cases and in matters involving the termination of the parent/child relationship, the child’s interests are often directly in conflict with one or both of the parents. In those cases, children should be given party status and deemed to be indispensable parties to any such proceedings. In ruling to grant Gregory K. standing to pursue his petition for termination of parental rights in the Florida circuit court, Judge Thomas Kirk stated that “Gregory has the greatest interest in the outcome of this litigation.” A child, as a person, also has the right to pursue happiness. There is no compelling state interest to justify denying or limiting this right to children. A child should have a right to independent legal counsel. He needs an advocate-someone who will plead his cause as forcefully as the attorneys for each competing custody claimant plead theirs. There well may be a need for a child in a custody action, where the child’s preferences are not being advocated and zealously pursued by a guardian ad litem, to select his own attorney to represent him. Finally, a particular child’s maturity or “capacity” is more properly considered in determining the weight to be given to that child’s wishes.