부모부양에 대한 제고 - 민법상 부모부양 의무규정의 해석, 적용에 관하여 -

Although great development in modern medicine and science has resulted in extending average life expectancy, due to industrialization and other different social changes, we are now faced with inevitable problem of supporting seniors. In ancient society, all members of family were involved with supporting seniors, and patriarch was responsible in patriarchy family. However as a result of industrialization, family was divided into smaller unit focused on either the children or married couple, modern state had to institutionalize ‘national support system’ for senior who was not considered as a member of ‘family’, without exception. Article 10 (Protection of Human Being’s Dignity and Fundamental Rights), and Article 34 (Security of Rights to Live as Fundamental right) of our Constitution states that the state has a duty to enforce welfare improvement system for seniors, and is responsible for senior’s economical and social protection. However in reality, no sufficient supporting system is yet established due to financial burden, and nevertheless support for seniors is more dependent on individual or individual who has a duty to support rather than it is solved by the state because Article 3 of ‘Law on Protection of Basic Living for Citizens’ regulates “Rule of Self-Reliance” and “Rule on Superiority of Private Support”. Also, North European Countries which are recognized as international welfare countries has recognized supporting seniors as a national duty and established many welfare programs, but is moving to entrust this matter to private hands due to stagnation of economy and side-effects of increase in welfare program. In addition, Socialist countries which promote an equal distribution of justice by expanding public support has failed ‘public support system’ and is expanding the area of private support under the value of strengthening of socialist families, which reveals the importance of private support. Considering the limit of state’s responsibility, despite the fact that dependency and importance on private support is surging regarding the rapidness of entry into senior society, our state’s policy system is not yet sufficient and government’s attitude is passive about resolving such problems through system. Especially, according to Civil Law, ‘parent supporting duty of adult offspring’ is not clearly stated, thus Article 974 is applied which is interpreted as ‘living support duty.’ Therefore, we are now confronted with problems whether how current law, which can be interpreted as that offspring has a duty to support their parents after their own life is fully managed, is following up to our reality and how to interpret laws relating to seniors such as “Senior Welfare Law” regarding a gap in support for seniors because our current welfare system regulates that private support comes first. Firstly, we need a legal foundation to clearly state ‘parent support duty’ as ‘living support duty.’ This is not only limited to supporting problem, but also resonates with promising equity with Constitution, Criminal Law and Senior Welfare Law. Furthermore, inherited assets, which is strongly characterized as inheritee’s lifetime personal assets, as if functions as a security for safely ensuring their lifetime support, active use of ‘support contribution system’ and by legislating a system which gives a disadvantage to an offspring who avoided supporting duty in inheriting asset, there is a need to link inheritance and support. By stating an importance of private parent support and support related articles in Civil Law, it is my opinion that if the state’s systematic support was included to reduce offspring’s parents’ support duty, it will induce more realistic active participation for parent support.