미성년 자녀의 불법행위에 대한 비양육친의 감독의무

Non-custodial parent's duty to supervise torts of minor children: Focusing on a critical review of Supreme Court Decision 2020Da240021 Decided April 14, 2022

When one of the parents is designated as the person with parental authority and caregiver, it is a question of whether the parent who does not have the duty to supervise the minor children can be recognized as a supervisor for torts of the minor children. Recently, the Supreme Court determined that non-custodial parents are not obligated to supervise torts of minor children unless there are special circumstances. The ruling set the first precedent on the issue of non-custodial parental supervision of minor children. However, the judgment of the lower court ruled that non-custodial parents are obligated to supervise minor children in principle, suggesting the opposite conclusion of the target judgment. There may be sufficient reasons for the differences in opinions between the first and second judgments and the Supreme Court judgments on the same facts. Even with the same facts, the interpretation may vary depending on how to interpret and link the legal principles of responsibility for supervisors under the tort law and the legal principles related to rights and obligations between parents and children under the kinship law. In this paper, we reviewed whether non-custodial parents can also recognize the supervisory duty in relation to the responsibility of supervisors for torts committed by minor children based on the tort law and the kinship law. And based on this review, we considered what interpretation theory would be a harmonious and more reasonable interpretation under civil law to present issues such as the subject judgment. The authors' views in this study are as follows - ① Non-custodial parents are also responsible for torts of the minor children, as non-custodial parents are also responsible for supervisory duties on minor children. ② However, if special circumstances are recognized, such as when a father or mother abandons a child who is an infant or loses contact after adopting him or her at home and abroad, or when decades have passed without interview negotiations or child support payments, non-custodial parents can be exempted from supervisory responsibility if they prove these special circumstances. This interpretation can be expected to increase the protection of victims due to torts and to remind underage children of their responsibilities and obligations as parents of normal growth and character formation. It is frequently reported in the media that civil and criminal problems related to minor children are occurring. Few would deny that there are inherent rights and obligations between parents and children. Based on these rights and obligations, it is believed that parents should bear some kind of infinite responsibility for their underage children to help them grow properly. Therefore, it is thought that this aspect will be fully considered in the interpretation of the law will be effective in preventing and solving social problems and reducing social costs.