독일민법에서 친권의 귀속과 행사에 관한 검토 - 독일법의 시사점과 공동친권 도입을 위한 제언 -

A Study on the Allocation and Exercise of Parental Custody under the German Civil Code: Implications of German Law and Proposals for Introducing Joint Parental Custody Both Korean law and German law adopt the principle that, in exercising parental custody, parents must give primary consideration to the best interests of the child. Nevertheless, the two systems differ in the allocation and exercise of parental custody. Accordingly, this article first examines in detail the concept, allocation, and exercise of parental custody within the German Civil Code. Under German law, the holders of parental custody (elterliche Sorge) are, as a rule, the legal parents, who are the bearers (Inhaber) of custody by operation of law. Moreover, the rules governing the exercise of custody are generally the same irrespective of whether the parents are married or divorced. Even when parents separate or divorce, joint parental custody is, in principle, maintained (§ 1671 BGB). Sole custody may be granted by the court only upon the application of one parent or when required for the best interests of the child. By contrast, under Korean law, married parents exercise parental custody jointly (Civil Act art. 909(2)), whereas in cases of children born out of wedlock who are subsequently acknowledged, or when parents divorce, the parents must determine the custodian by agreement (art. 909(4)). Korean law separates the designation of the custodian and the designation of the caregiver upon divorce, which means that the parent with custody and the parent providing actual care may differ. In addition, case law recognizes the possibility of joint parental custody. This article reviews the German legal framework and, drawing on the implications of German law, examines the allocation and exercise of parental custody under Korean law. It further seeks to derive insights from German law. In particular, the article proposes concrete avenues for introducing joint parental custody into Korean law. For a transition to joint parental custody at the time of divorce, institutional reforms that can mitigate parental conflict will be necessary. To this end, this article proposes two approaches. The first is to follow the German model, in which joint parental custody is introduced as the general rule and sole custody is allowed only as an exception. The second is a gradual approach, under which joint parental custody is explicitly recognized alongside the existing sole-custody rule, thereby clarifying the option of joint custody. For this purpose, the article recommends establishing basic principles for the exercise of parental custody; introducing optional joint custody or allowing the family court to mandate joint custody; creating a joint-custody declaration system to expand joint parental custody regardless of the parents’ marital status; and institutionalizing practical guidelines for the exercise of joint parental custody.