보호 대상 아동을 위한 보편적·협력적 미성년후견 제도 도입 제언

A Proposal for Introducing a Universal and Cooperative Guardianship Framework for Children in Need of Protection

Over the past few decades, the field of child welfare has developed its own minor guardianship system, independent from the Civil Code. The applicable legal frameworks vary according to the type of protective measure: the Institutional Minor Guardianship Act for children in institutional care, the Civil Code and the Child Welfare Act for those in foster care, and the Special Adoption Act for children eligible for adoption. In institutional care, the guardian’s authority is generally equivalent to that under the Civil Code, yet the appointment and supervision processes are conducted by local governments, and institutional corporate guardianship is commonly practiced. For foster care, both the scope and procedure of guardianship are regulated by the Civil Code; however, the 2025 amendment to the Child Welfare Act allows foster parents to exercise limited representative authority for up to two years without formal appointment. In adoption cases, guardianship by the head of the local government begins upon entrustment under Article 13(3) of the Special Adoption Act, and prospective adoptive parents automatically acquire joint temporary guardianship when granted a temporary custody order, forming a structure entirely distinct from the Civil Code. However, it is problematic that the decision-making support system for children varies depending on whether, and under what type of, protective measure they fall. This paper therefore proposes: (1) automatic initiation of minor guardianship by the head of the local government and suspension of parental authority upon commencement of protection; (2) procedural safeguards, such as parental consent or court approval, to prevent abuse of authority; (3) granting de facto caregivers of institutionalized or pre-adoptive children limited daily caregiving authority; (4) enabling re- or co-appointment of minor guardianship, allowing the involvement of individual or professional guardians when necessary, to prevent bureaucratization; and (5) promoting information sharing and cooperation among local governments, parents, and caregivers to ensure timely decision-making. The Civil Code should likewise be amended to incorporate corporate and multiple guardianship systems, thereby establishing a universal and cooperative guardianship framework for all children in need of protection.