미성년자 인격권 보호 - 동의권 중심으로 -

Amendments have been made to create a new provision for ‘personal rights’ in the Civil Act. The field of protection of the personal right is a wide and also the subject of continuous research, and in my opinion the the personal rights could be divided into three areas. First, there are moral rights related to life, body, and health; the second, personal property rights; and finally, non-property personal rights. In the relevant article of the Ministry of Justice, there are no detailed standards for the protection of the moral rights of minors in the the personal rights. Accordingly, the provisions of the Civil Act and the standards of the Personal Information Protection Act should be reviewed. Orthodoxy and precedents regard the Civil Act as the central regulation of the property law. According to it, in the legal acts of minors, the consent of the parental authority should be considered to be applied in the case of the exercise of the right to property rights. For example, if a minor, who is the subject, sells his or her portrait photo to a company, if knowing that the company can use it for commercial advertising, the minor needs the consent of the parental authority according to the principle of civil law. A person of parental authority cannot sell a portrait photo of a minor against the will of the minor to a company in the same case. However, when a minor uploads his or her portrait photo on his or her SNS, it should be possible to decide independently as not an exercise of a property right that requires the consent of the parental authority. But as an expression of personal rights under the Constitution and protection of the personal right, which is planned to be newly established under the revised Civil Act. For example, if there is a need for sanctions or the need to protect minors in the act of actively posting and distributing portrait rights for portrait photos of minors, interpretation becomes a problem. For example, when a minor uploads a nude photo of himself or herself on social media or provides it to a child pornography site without payment. In this case, the standards of Articles 103 and 104 of the Civil Act should be applied to deal with it. Therefore, in the protection of personal rights, the Personal Information Protection Act is applied when an individual can be recognized among personal information, and in the case of minors between the ages of 14 and 19, since there are no active provisions in the Personal Information Protection Act, the general principles of the Civil Act are applied and property rights are protected. In order to understand the protection system for personal rights in the current law, the personal rights were divided into three types; the first, the personal rights related to life, body, and health, the second, non-property rights, and the last, the personal rights with property rights. In individual laws, it is stipulated that the right of consent of minors is insufficient, but there are cases where it is insufficient. In particular, if there is a disagreement between the parental authority and the opinion of minor, the protection through the parental authority is not provided, which is a big problem. If the general principle of civil law is applied, the consent of the parental authority is required in the case of property rights, but in the case of non-property nature, minors should be able to make their own decisions. In particular, in the case of personal rights related to life, body, and health, the exercise of the right to consent according to the right of self-determination should be protected in order to respect the will of the minor. From a legislative perspective, it is also considered a method to have written regulations.