아동의 권리와 가정내 아동체벌금지에 관한 헌법적 고찰 = The Right of Child and Constitutional Analysis on Prohibiting Corporal Punishment of Children in Families

다국어 초록 (Multilingual Abstract)

Corporal punishment is one of the most pervasive and traditional forms to discipline children in families and schools all over the world. But corporal punishment actually and simply is hitting the children for purposes of correction and it causes pain and may cause other physical and mental abuse. Children are the only people against whom violence is permitted and justified as discipline in our society. Children are one of the most vulnerable minorities for their immaturity, dependency. In 1989, UN adopted the first binding UN document, CRC (Convention on the Rights of the Child) for the protection of children and recognition of the children with the independent identity having fundamental rights same as the adults. CRC Article 19 imposes an obligation on States Parties to take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse and etc. while even in the care of parents. Although Article 19 does not refer to corporal punishment exactly, the Committee on the Rights of the Child adopted General Comment No. 8 entitled ‘The Right to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment’ and recommended all States Parties including Korea to move to prohibit all corporal punishment. Nowadays 43 states ban all the corporal punishment in all settings, even in families. However, we allow a reasonable degree of corporal punishment by the interpretation of parents` rights of discipline for their child in civil law, though we don`t have any specific provisions about corporal punishment. This article aims to the legislative proposition about prohibition of corporal punishment in family in the context of Constitutional Law. It explains the right of children, CRC articles and General Comment related with the corporal punishment and reviews the legislative examples in major countries dealing with corporal punishment and problems. This article analyzes the right of the parents, right of child and the duty of state to protect dignity of child and physical integrity. Finally, it proposes the legislation to eliminate all the corporal punishment to protect right of children and to lead the decrease of the child abuses in family by the change of the attitude about corporal punishment.