‘가정’법원의 역할 확대와 가정‘법원’의 바람직한 기능 - 미국 통합가정법원(UFC)에 대한 비판론을 중심으로 -

Over the last twenty years, family justice systems have been challenged seriously. Enormous changes in economic structure and social demographics have created complicated circumstances in daily living for families to navigate. As a result, they have turned to the court for help to resolve a variety of matters not encountered previously. The wide array of potential underlying issues in family and children cases has become quite complex and can require protracted planning involving social service interventions. To keep with this situation, it can be widely agreede that an upgraded Family Court is urgently needed. This article, however, highlights several of the potential problems with the so-called ‘Problem-Solving Court’, based on the discourse about the Unified Family Courts in U. S. It is not a condemnation of unified family courts per se ; it is simply a suggestion that reformers proceed with their eyes open, taking time to consider the potential demerits of the unified family court system before using valuable resources for its implementation. In U. S., the Unified Family Courts have been introduced and operated in many states. In fact,there is no agreed-on definition of what family courts are. But the general definition of a unified family court includes five elements: (a) comprehensive jurisdiction, (b) a one judge-one family system, (c) a therapeutic justice approach, (d) training of judges and court personnel, and (e)coordinated case management procedures. Much has been written about the potential success of unified family courts. Unified family court proponents share great optimism and enthusiasm for what they see as a solution to several of the problems facing court systems today. This enthusiasm should be applauded. As with any reform, however, unified family court advocates must stop to consider the possible drawbacks to the system that they propose. It can be summarized as three poins. First, UFCs proffer the judiciary to the citizen-consumer as a delivery organization at the “street level”, that play the role of the judicial bureaucracy as the administrator of social welfare and child protection. The adoption and development of such a policy initiative does not, however, answer important questions about the consequences of an organizational evolution. Second, it should be kept in mind whether these courts would preserve the substantive due process right of “family integrity” that protects the rights of parents to raise their children as they choose and allows children to grow up with their own unique family. It is needless to say that even the Problem-solving courts, believing they could assist the families anyway, should not ignore those constitutional and statutory restrictions. Third, Unified family courts have been so widely discussed and accepted that they risk becoming an easy political “solution” to systemic problems that poor families face. If the public believes that all family problems can be solved with the creation of a unified family court, advocates for children and families may move on to other problems. However, there is no evidence to suggest that courts are better at handing out therapeutic justice than other agency.