헌법상 아동 보호 강화를 위한 아동 법제 정비방안에 관한 연구

As a signatory of the UN Convention on the Rights of the Child (“UN CRC”), the Ministry of Health and Welfare of South Korea announced to enact the Framework Act on the Rights of Children. The National Assembly of South Korea submitted two bills to enact that. However, those bills failed to move on the subsequent procedural stages due to political conflicts between two major political parties. While the surrounding environments for children have been advanced and abundant, there were few legal and institutional grounds to vindicate children’s rights. Illegal or culpable activities such as child abuse or abandonment and discriminations against children are still occurring if we see news articles. In addition to that, a wrong perspective that a child belongs to his or her parents has been dominant over the years. The Framework Act on the Rights of Children should be enacted as soon as possible despite the bills failed to be finalized on the legislative level. The Act will be a major transition point on the vindication level of children’s rights in South Korea. While an effort to make the Act should be noted regardless of its failure on the legislative level, there are some loopholes to be pointed out in the current children-relevant legislatures. First, the definition of a child including the age thresholds, should be merged in a single way. Besides the term “child”, similar terms like “youth”, “child and youth”, “juveniles” and “minors” are widely used by different codes respectively. Given that the UN CRC articulates that “Child” means a person under 18 years old, those similar terms are necessary to be used with the single definition, the child. Second, the Framework Act on Youth needs to be merged with the Framework Act on the Right of Children and should be repealed. The Framework Act on Youth contains provisions relevant to vindicating the youth as a right-holder. But, it articulates that “Youth” are young male and female older than 9 years old and younger than 24 years old. This definition will be no doubt to bring a conflict with the Framework Act on the Rights of Children given that “child” is a person under 18 years old. What should be applied to a person under 8 years old individuals between two different laws? To vindicate children as right-holders, to repeal it, or to amend it to merge with the Act on the rights of Children at least, is prerequisite. Third, children are exposed to harmful online contents such as AI-based algorithms to have an impact on their mental health or sexual exploitations as well as sexual abuses. As the article 16 of UN CRC articulates, when the Bill for the Framework Act on the Rights of Children are re-submitted to the Congress for enactment, the clauses for protecting children’s personal information and their privacy should be included. Lastly, some colleagues in academia argue that the Constitution of South Korea lacks provisions relevant to children. This argument evolved into to the less protection on children and the less legal basis to establish policies on children in the legislature. However, mere constitutionalization does not necessarily guarantee the argument. In addition, amending the Constitution requires to pass through difficult procedures and to harmonize different and diverse voices raised from various organizations and the vast classes, which would not be compromised easily. Thus, keeping at pace with the Congress to enact the previous Framework Act on the Rights of Children, rather than revising the current Constitution to include the human rights for children, should be more effective in terms of time and cost. The enactment of the Act to vindicate the rights given to children would be a great leap. This will be a major turning point for the protection of children in South Korea whose rights should be enriched. But making a mere new law cannot guarantee the success of the ends for children. Thus, reviewing current legal frameworks related to children thoroughly is necessary to achieve the goals.