자의 성과 본의 변경심판에 있어서 자의 복리 (A Study on the Child’s Welfare in the Petition for Change of the Child’s Surname)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 22권 / 2호 / 29 ~ 78페이지
· 저자명 : 이현재

초록

Section 781(1) of the Korean Civil Code was amended on March 31, 2005 to provide that: (1) A child shall assume her or his father’s surname and origin of surname. But in a case of the child whose parents agreed to follow its mother’s surname when they got married, the child shall assume her or his mother’s surname and the origin of surname.
A new subsection, §781(6), was enacted to provide, in relevant part, that: “the court may permit a child’s original surname and origin of surname to change when her or his surname need to be changed for the child’s welfare. (the rest omitted)”
This Article explores the application, the implications, and the elements of the child’s welfare in the petition for change of the child’s surname, with analytical studies on the cases filed in the family court, Gwang-Ju district court. It first starts with the decision of the Constitutional Court holding patronymy unconstitutional.
Part Ⅱ argues the several necessities of change of child’s surname such as the need for stability for remarried families, adoptive families, or mother-child families. In addition, it discusses the concept of child’s welfare as the standard for the change. The Korean Civil Code is silent on the child’s welfare standard. The standard authorizes the court to determine the result that is best for a child. But the prevailing view defines the child’s welfare as a composite of the follow factors: a) the preservation of the father-child relationship; b) the strength of the mother-child relationship; c) the identification of the child as part of a family unit; d) the wishes of the child; e) the child’s age and maturity; f) the nature of the family situation; g) misconduct of or neglect toward the child by the parent opposing the change; h) the name by which the child has customarily been called; and i) the opposing party’s conduct toward the spouse and the child during the marriage.
Other factors include the length of time during which the child has used a name, the child’s comfort with using a surname that differs from the custodial parent’s surname, the child’s alienation from neighborhood children who bear their fathers’ surnames, any negative association or social stigma attached to either the current or proposed name, and the petitioner’s motive for seeking the name change.
The parent who seeks to change the child’s surname must prove that the proposed change is in the child’s best interest. Courts do not necessarily examine all of these factors, and none of the factors constitutes a mandatory consideration. The factors are not prioritized in importance. The best interest of the child is determined by the virtually unfettered discretion of the trial court. Courts must balance a number of considerations to reach its conclusion.
Part Ⅲ shows a statistical report, such as the number of the cases petitioned before the family court, Gwang-Ju district court, and the number, the percentage, and the sort of the petitions granted or dismissed. This statistic shows that most women now prevail in cases involving marital children’s surnames. In addition, the factors of the child’s welfare are investigated through the forms provided by two courts, the family court, Gwang-Ju district court, and Seoul family court.
Part Ⅳ analyzes what factors constitute the child’s welfare in specific cases, and which factors carried more weight than other factors before the family court, Gwang-Ju district court, i.e., whether the family court considers heavily which factor of several factors. Part Ⅳ shows the importance and the weight of visitation and support payment by uncustodial father. Visitation and support payment, two of the elements of child’s welfare, are often considered most critical in determining the change of the child’s surname from the surname of her or his father to the surname of mother. Especially, the court relies heavily on, among other factors, the existence of different surname children born of between the same mother and stepfather in determining the change of the child’s surname from the surname of her or his father to the surname of a new stepfather. The court is reluctant to change adult’s surnames, although it is not entirely impossible to do so.
Finally, Part Ⅴ of this Article emphasizes the knowledge of the inclination or disposition of trial judges in family court. Because the best interest of the child is determined by the virtually unfettered discretion of the trial court.

영어초록

Section 781(1) of the Korean Civil Code was amended on March 31, 2005 to provide that: (1) A child shall assume her or his father’s surname and origin of surname. But in a case of the child whose parents agreed to follow its mother’s surname when they got married, the child shall assume her or his mother’s surname and the origin of surname.
A new subsection, §781(6), was enacted to provide, in relevant part, that: “the court may permit a child’s original surname and origin of surname to change when her or his surname need to be changed for the child’s welfare. (the rest omitted)”
This Article explores the application, the implications, and the elements of the child’s welfare in the petition for change of the child’s surname, with analytical studies on the cases filed in the family court, Gwang-Ju district court. It first starts with the decision of the Constitutional Court holding patronymy unconstitutional.
Part Ⅱ argues the several necessities of change of child’s surname such as the need for stability for remarried families, adoptive families, or mother-child families. In addition, it discusses the concept of child’s welfare as the standard for the change. The Korean Civil Code is silent on the child’s welfare standard. The standard authorizes the court to determine the result that is best for a child. But the prevailing view defines the child’s welfare as a composite of the follow factors: a) the preservation of the father-child relationship; b) the strength of the mother-child relationship; c) the identification of the child as part of a family unit; d) the wishes of the child; e) the child’s age and maturity; f) the nature of the family situation; g) misconduct of or neglect toward the child by the parent opposing the change; h) the name by which the child has customarily been called; and i) the opposing party’s conduct toward the spouse and the child during the marriage.
Other factors include the length of time during which the child has used a name, the child’s comfort with using a surname that differs from the custodial parent’s surname, the child’s alienation from neighborhood children who bear their fathers’ surnames, any negative association or social stigma attached to either the current or proposed name, and the petitioner’s motive for seeking the name change.
The parent who seeks to change the child’s surname must prove that the proposed change is in the child’s best interest. Courts do not necessarily examine all of these factors, and none of the factors constitutes a mandatory consideration. The factors are not prioritized in importance. The best interest of the child is determined by the virtually unfettered discretion of the trial court. Courts must balance a number of considerations to reach its conclusion.
Part Ⅲ shows a statistical report, such as the number of the cases petitioned before the family court, Gwang-Ju district court, and the number, the percentage, and the sort of the petitions granted or dismissed. This statistic shows that most women now prevail in cases involving marital children’s surnames. In addition, the factors of the child’s welfare are investigated through the forms provided by two courts, the family court, Gwang-Ju district court, and Seoul family court.
Part Ⅳ analyzes what factors constitute the child’s welfare in specific cases, and which factors carried more weight than other factors before the family court, Gwang-Ju district court, i.e., whether the family court considers heavily which factor of several factors. Part Ⅳ shows the importance and the weight of visitation and support payment by uncustodial father. Visitation and support payment, two of the elements of child’s welfare, are often considered most critical in determining the change of the child’s surname from the surname of her or his father to the surname of mother. Especially, the court relies heavily on, among other factors, the existence of different surname children born of between the same mother and stepfather in determining the change of the child’s surname from the surname of her or his father to the surname of a new stepfather. The court is reluctant to change adult’s surnames, although it is not entirely impossible to do so.
Finally, Part Ⅴ of this Article emphasizes the knowledge of the inclination or disposition of trial judges in family court. Because the best interest of the child is determined by the virtually unfettered discretion of the trial court.

참고자료

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