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KCI우수등재 학술저널

자녀의 이익을 위한 가사사건 절차상 대리인제도

영국과 독일의 제도를 중심으로

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In the family cases procedure, even though children are realistic parties who are directly affected by the result, they can’t insist their opinion or interests just because they are not procedural parties. Our country has set the only one regulation that family court should listen to the children over 15 years old in the judgment for a few important cases regarding children’s welfare. However, in order to realize children’s right progressively, we need a system that can reflect children’s feelings and wishes on the procedure through the consideration and support based on their developmental phase as a prerequisite of children’s right to identity. In other words, if the child can’t express his or her opinion, or if the opinion is not sufficient enough, it is highly recommended to appoint a children’s guardian who is independent of the parents or a court. Therefore, our government that needs to make haste in introducing other countries’ effective systems can learn something important from especially the systems of the U.K and Germany that have close connection between a court and other organizations by supporting children with both professional and civil welfare organizations. First, considering the aspect of organizational scale, both human and material resources of our family court, it is realistically impossible to appoint a guardian in all family cases procedure related to children. Therefore, it is desirable to let the court listen to children’s opinion obligatorily and then appoint a guardian if it is significant for children’s welfare or hard to make a decision without listening to children’s opinion, by taking half of each solution of the U.K and Germany. Secondly, the family cases which especially have influence on children’s right and interests require more consideration and detailed technical knowledge as well as legal knowledge itself. Considering the characteristics of more and more complicated and varied family cases, we can think of plans to establish organizations other than a family court or to change current organizations into professional ones that mandate children’s guardianship and search and support children. It might be not necessary for children’s guardians to have legal knowledge and it is desirable to let the court make a decision considering the characteristics of the case or children’s situation as Germany does. In addition, we need to observe carefully the system of CAFCASS to guard and support children and the roles of Jugendamt in Germany as well. Third, it is significant for a children’s guardian not only to deliver children’s opinion to the court but also to let children’s opinion be reflected by providing appropriate information in accordance with their age or growth level in managing procedure as Germany does. More than anything else, in order to establish these systems successfully, It has to be preceded to be aware of the importance and necessity of supportive solution or educational consideration and to have the will to realize it actively, rather than economic efficiency or swiftness in the case of parental right and custody of the children who cannot express their opinion correctly.

Ⅰ. 머리말

Ⅱ. 영국법상 아동의 대리인제도

Ⅲ. 독일의 절차보조인제도

Ⅳ. 맺음말

참고문헌

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