친권 제한의 유연화 —신분적 효력을 중심으로—

When parents are unable to accomplish parental responsibility due to mental, physical, or economic problems, a state or a community intervenes for the best interest of the child. However, the state should guarantee the child and the parents to live together unless the court decides to separate them for the sake of the child. It is because the termination of a parent-child relationship by the complete forfeiture of parental authority can have a negative effect upon the stability and continuity of child custody. However, there is a problem that the third party, according to Korean civil code, cannot be involved in custody without terminating a parent-child relationship. In other words, only parents can have full rights of child rearing unless parents lose their parental authority. Even in the case in which the state or the community supports child-rearing, there is no specific rule concerning the relationship between parents and a third party for custody. Such inflexibility and vagueness impede us to make the best interest of child. If such codes on parental authority are flexiblized by allowing partial restrictions or temporary suspension of parental authority, each child can be provided with suitable security and cares more efficiently. When parental authority is partially restricted or suspended, a third party should get into undertake limited rights and responsibilities of parental authority. At this time, the rights of the third party in child rearing and parental authority should be acknowledged and clarified to complement parents’ limited authority. The extent of and the criterion for such limitation of parental authority should be determined by family court concerning the best interest of the child. In this respect, the role of the family court should be more expanded and fortified.