가사소송에서의 미성년 자녀의 절차적 지위 (A Study on the Procedural Status of Minor Children in Domestic Litigation)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 19권 / 1호 / 313 ~ 352페이지
· 저자명 : 김원태

초록

This study set out to briefly investigate the procedural status of minor children mainly in domestic litigation from the perspectives of their right to express views and right to be heard and of procedural guardians for them.
Guaranteeing minor children an opportunity to state their opinions is one of the essential elements of judicial proceedings. The current rules of domestic litigation provide minor children of 13 years old or older with such an opportunity only when they are directly involved in the case or have a stake in it in certain procedures.
The Proposal of Revised Family Litigation Act has introduced new provisions to allow Family Court to make a decision between listening to the statements of a minor child regardless of its age when a court judgment says its well-being is directly influenced by its statements and not listening to its statements when it is deemed to be inappropriate(Article 20, Clauses 1 and 2 Proposal of Revised Family Litigation Act). Those new provisions are considered very proper.
It is also required to introduce a procedure to allow a minor child to appoint a special agent or guardian ad litem according to its needs when it hopes to express its opinions and its opinions are in opposition to those of its current agent. Since there is no express provision regarding the matter in the current Family Litigation Act, the Civil Procedure Act is applied instead.
The Proposal of Revised Family Litigation Act also allows Family Court to exercise its authority and grant an appointment of a special agent by the request of the minor child itself, its relative, the other party, the interested party, or the prosecutor when it has concerns that the domestic litigation procedures will be postponed and thus cause a loss when the minor child has no legal representative or its current legal representative cannot exercise the right of representation(Article 29, Clause 1 Proposal of Revised Family Litigation Act). In other words, the Family Court bestows the right to appoint a special agent on the minor child or can appoint a special agent for the minor child based on its own authority. The Family Court also exercises its authority and grants an appointment of a special agent by the request of the minor child itself, its relative, the other party, the interested party, or the prosecutor when a special agent seems to be needed for the protection of its profit since no proper performance of litigation is expected from the minor child that is capable of act of procedure for itself(Article 29, Clause 2 Proposal of Revised Family Litigation Act). Furthermore, the Proposal of Revised Family Litigation Act has introduced a procedural assistant system in addition to the special agent system by taking the importance of results of family case judgments on minor children into consideration(Article 16 Proposal of Revised Family Litigation Act). Procedural assistant can work to understand the intentions of minor children accurately and assist them in the trial process. It is considered as a proper legislative measure, given the definite need to introduce a procedure guardian system for the best profit protection of minor children in domestic case procedures. The Proposal of Revised Family Litigation Act, however, has no express provision on the costs of appointing an ex officio special agent and of procedural acts of a special agent, which raises a need to establish new applicable provisions to pay the costs of appointing an ex officio special agent out of the national treasury.

영어초록

This study set out to briefly investigate the procedural status of minor children mainly in domestic litigation from the perspectives of their right to express views and right to be heard and of procedural guardians for them.
Guaranteeing minor children an opportunity to state their opinions is one of the essential elements of judicial proceedings. The current rules of domestic litigation provide minor children of 13 years old or older with such an opportunity only when they are directly involved in the case or have a stake in it in certain procedures.
The Proposal of Revised Family Litigation Act has introduced new provisions to allow Family Court to make a decision between listening to the statements of a minor child regardless of its age when a court judgment says its well-being is directly influenced by its statements and not listening to its statements when it is deemed to be inappropriate(Article 20, Clauses 1 and 2 Proposal of Revised Family Litigation Act). Those new provisions are considered very proper.
It is also required to introduce a procedure to allow a minor child to appoint a special agent or guardian ad litem according to its needs when it hopes to express its opinions and its opinions are in opposition to those of its current agent. Since there is no express provision regarding the matter in the current Family Litigation Act, the Civil Procedure Act is applied instead.
The Proposal of Revised Family Litigation Act also allows Family Court to exercise its authority and grant an appointment of a special agent by the request of the minor child itself, its relative, the other party, the interested party, or the prosecutor when it has concerns that the domestic litigation procedures will be postponed and thus cause a loss when the minor child has no legal representative or its current legal representative cannot exercise the right of representation(Article 29, Clause 1 Proposal of Revised Family Litigation Act). In other words, the Family Court bestows the right to appoint a special agent on the minor child or can appoint a special agent for the minor child based on its own authority. The Family Court also exercises its authority and grants an appointment of a special agent by the request of the minor child itself, its relative, the other party, the interested party, or the prosecutor when a special agent seems to be needed for the protection of its profit since no proper performance of litigation is expected from the minor child that is capable of act of procedure for itself(Article 29, Clause 2 Proposal of Revised Family Litigation Act). Furthermore, the Proposal of Revised Family Litigation Act has introduced a procedural assistant system in addition to the special agent system by taking the importance of results of family case judgments on minor children into consideration(Article 16 Proposal of Revised Family Litigation Act). Procedural assistant can work to understand the intentions of minor children accurately and assist them in the trial process. It is considered as a proper legislative measure, given the definite need to introduce a procedure guardian system for the best profit protection of minor children in domestic case procedures. The Proposal of Revised Family Litigation Act, however, has no express provision on the costs of appointing an ex officio special agent and of procedural acts of a special agent, which raises a need to establish new applicable provisions to pay the costs of appointing an ex officio special agent out of the national treasury.

참고자료

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