학술논문
자의 성과 본의 변경심판에 있어서 자의 복리
이용수 182
- 영문명
- A Study on the Child’s Welfare in the Petition for Change of the Child’s Surname
- 발행기관
- 한국가족법학회
- 저자명
- 이현재(Hyun Jai Lee)
- 간행물 정보
- 『가족법연구』家族法硏究 第22卷 2號, 29~78쪽, 전체 50쪽
- 주제분류
- 법학 > 법학
- 파일형태
- 발행일자
- 2008.07.01
8,800원
구매일시로부터 72시간 이내에 다운로드 가능합니다.
이 학술논문 정보는 (주)교보문고와 각 발행기관 사이에 저작물 이용 계약이 체결된 것으로, 교보문고를 통해 제공되고 있습니다.
국문 초록
영문 초록
Section 781(1) of the Korean Civil Code was amended on March 31, 2005 to provide that: (1) A child shall assume her or his father’s surname and origin of surname. But in a case of the child whose parents agreed to follow its mother’s surname when they got married, the child shall assume her or his mother’s surname and the origin of surname.
A new subsection, §781(6), was enacted to provide, in relevant part, that: “the court may permit a child’s original surname and origin of surname to change when her or his surname need to be changed for the child’s welfare. (the rest omitted)”
This Article explores the application, the implications, and the elements of the child’s welfare in the petition for change of the child’s surname, with analytical studies on the cases filed in the family court, Gwang-Ju district court. It first starts with the decision of the Constitutional Court holding patronymy unconstitutional.
Part Ⅱ argues the several necessities of change of child’s surname such as the need for stability for remarried families, adoptive families, or mother-child families. In addition, it discusses the concept of child’s welfare as the standard for the change. The Korean Civil Code is silent on the child’s welfare standard. The standard authorizes the court to determine the result that is best for a child. But the prevailing view defines the child’s welfare as a composite of the follow factors: a) the preservation of the father-child relationship; b) the strength of the mother-child relationship; c) the identification of the child as part of a family unit; d) the wishes of the child; e) the child’s age and maturity; f) the nature of the family situation; g) misconduct of or neglect toward the child by the parent opposing the change; h) the name by which the child has customarily been called; and i) the opposing party’s conduct toward the spouse and the child during the marriage.
Other factors include the length of time during which the child has used a name, the child’s comfort with using a surname that differs from the custodial parent’s surname, the child’s alienation from neighborhood children who bear their fathers’ surnames, any negative association or social stigma attached to either the current or proposed name, and the petitioner’s motive for seeking the name change.
The parent who seeks to change the child’s surname must prove that the proposed change is in the child’s best interest. Courts do not necessarily examine all of these factors, and none of the factors constitutes a mandatory consideration. The factors are not prioritized in importance. The best interest of the child is determined by the virtually unfettered discretion of the trial court. Courts must balance a number of considerations to reach its conclusion.
Part Ⅲ shows a statistical report, such as the number of the cases petitioned before the family court, Gwang-Ju district court, and the number, the percentage, and the sort of the petitions granted or dismissed. This statistic shows that most women now prevail in cases involving marital children’s surnames. In addition, the factors of the child’s welfare are investigated through the forms provided by two courts, the family court, Gwang-Ju district court, and Seoul family court.
Part Ⅳ analyzes what factors constitute the child’s welfare in specific cases, and which factors carried more weight than other factors before the family court, Gwang-Ju district court, i.e., whether the family court considers heavily which factor of several factors. Part Ⅳ shows the importance and the weight of visitation and support payment by uncustodial father. Visitation and support payment, two of the elements of child’s welfare, are often considered most critical in determining the change of the child’s surname from the surname of her or his father to the surname of m
A new subsection, §781(6), was enacted to provide, in relevant part, that: “the court may permit a child’s original surname and origin of surname to change when her or his surname need to be changed for the child’s welfare. (the rest omitted)”
This Article explores the application, the implications, and the elements of the child’s welfare in the petition for change of the child’s surname, with analytical studies on the cases filed in the family court, Gwang-Ju district court. It first starts with the decision of the Constitutional Court holding patronymy unconstitutional.
Part Ⅱ argues the several necessities of change of child’s surname such as the need for stability for remarried families, adoptive families, or mother-child families. In addition, it discusses the concept of child’s welfare as the standard for the change. The Korean Civil Code is silent on the child’s welfare standard. The standard authorizes the court to determine the result that is best for a child. But the prevailing view defines the child’s welfare as a composite of the follow factors: a) the preservation of the father-child relationship; b) the strength of the mother-child relationship; c) the identification of the child as part of a family unit; d) the wishes of the child; e) the child’s age and maturity; f) the nature of the family situation; g) misconduct of or neglect toward the child by the parent opposing the change; h) the name by which the child has customarily been called; and i) the opposing party’s conduct toward the spouse and the child during the marriage.
Other factors include the length of time during which the child has used a name, the child’s comfort with using a surname that differs from the custodial parent’s surname, the child’s alienation from neighborhood children who bear their fathers’ surnames, any negative association or social stigma attached to either the current or proposed name, and the petitioner’s motive for seeking the name change.
The parent who seeks to change the child’s surname must prove that the proposed change is in the child’s best interest. Courts do not necessarily examine all of these factors, and none of the factors constitutes a mandatory consideration. The factors are not prioritized in importance. The best interest of the child is determined by the virtually unfettered discretion of the trial court. Courts must balance a number of considerations to reach its conclusion.
Part Ⅲ shows a statistical report, such as the number of the cases petitioned before the family court, Gwang-Ju district court, and the number, the percentage, and the sort of the petitions granted or dismissed. This statistic shows that most women now prevail in cases involving marital children’s surnames. In addition, the factors of the child’s welfare are investigated through the forms provided by two courts, the family court, Gwang-Ju district court, and Seoul family court.
Part Ⅳ analyzes what factors constitute the child’s welfare in specific cases, and which factors carried more weight than other factors before the family court, Gwang-Ju district court, i.e., whether the family court considers heavily which factor of several factors. Part Ⅳ shows the importance and the weight of visitation and support payment by uncustodial father. Visitation and support payment, two of the elements of child’s welfare, are often considered most critical in determining the change of the child’s surname from the surname of her or his father to the surname of m
목차
Ⅰ. 서론
Ⅱ. 자의 복리를 위한 성과 본의 변경
Ⅲ. 성과 본의 변경심판청구 사건의 조사ㆍ분석
Ⅳ. 동 법원의 허ㆍ불허 결정의 분석
Ⅴ. 결론
《참고문헌》
Ⅱ. 자의 복리를 위한 성과 본의 변경
Ⅲ. 성과 본의 변경심판청구 사건의 조사ㆍ분석
Ⅳ. 동 법원의 허ㆍ불허 결정의 분석
Ⅴ. 결론
《참고문헌》
키워드
해당간행물 수록 논문
참고문헌
관련논문
최근 이용한 논문
교보eBook 첫 방문을 환영 합니다!
신규가입 혜택 지급이 완료 되었습니다.
바로 사용 가능한 교보e캐시 1,000원 (유효기간 7일)
지금 바로 교보eBook의 다양한 콘텐츠를 이용해 보세요!