가정법원의 문제해결·후견적 기능 제고를 위한 과제 ―보호사건을 중심으로―

제철웅 한국가족법학회 2022 가족법연구 Vol.36 No.3

In the 21st century, juvenile crimes, delinquencies, and domestic violences have much more attracted social attention, which cannot be separated from the changed social environment, where, on the one hand, the traditional ‘head of family’ system not only as a social entity, but also as a legal system has eventually been abolished in 2005, and where, on the other hand, the conflict between traditional and new value system has arisen as the ideology of democracy, equality, and respect to human rights has rapidly entered the Korean society since the end of 20th century. In other words, the traditional way of dealing with problematic behaviors of adolescents and family members against other family members has begun to face limitations. Coincidently, the problem-solving function of the family court has been emphasized. This paper is the result of research, whereby what systemic change would be required to have the family court dealing with juvenile cases, dependent children cases, and domestic violence victim cases function as the problem-solving court and what roles the family court investigators should play for this purpose have been investigated. This paper sought to make clear that the fact that juvenile cases, dependent children cases, and domestic violence victim cases are under the jurisdiction of the family court reflects the unique Korean state parent idea. In this regard, Korean family court’s cases mentioned above are similar to western juvenile courts and dependency courts, which have developed in close relation with the state parent idea. That being said, western state parent idea has developed as with the local authorities’ intervention into families for the protection of abused and delinquent children, and juvenile courts and family courts have played as assistants and facilitators for local authorities to do partnership with families as the state parent idea changed, whereas the state parent idea has developed in Korea only in the judicial proceedings for abused and delinquent children cases, where public prosecutors and judges play role as state parents. Based on this unique development, this paper argues that transforming the family court into the problem-solving court is recommended to facilitate local authorities intervening into family matters for the protection of abused and delinquent children and domestic violence victims. For this purpose, this paper suggests that the legal provisions related to the proceedings and protection measures of juvenile cases, child abuse cases, and domestic violence cases should be reformed for partnership between the state and families to materialize. Furthermore, this paper suggests that expertise of family investigators should be developed to facilitate the suggested reformation, and that the social welfare and protection function of family courts, which have been introduced in some family courts to meet immediate needs of protecting vulnerable parties and participants in the proceedings, should be delegated to an independent support agency under the court.

‘가정’법원의 역할 확대와 가정‘법원’의 바람직한 기능 - 미국 통합가정법원(UFC)에 대한 비판론을 중심으로 -

권재문 대한변호사협회 2012 人權과 正義 : 大韓辯護士協會誌 Vol.- No.430

Over the last twenty years, family justice systems have been challenged seriously. Enormous changes in economic structure and social demographics have created complicated circumstances in daily living for families to navigate. As a result, they have turned to the court for help to resolve a variety of matters not encountered previously. The wide array of potential underlying issues in family and children cases has become quite complex and can require protracted planning involving social service interventions. To keep with this situation, it can be widely agreede that an upgraded Family Court is urgently needed. This article, however, highlights several of the potential problems with the so-called ‘Problem-Solving Court’, based on the discourse about the Unified Family Courts in U. S. It is not a condemnation of unified family courts per se ; it is simply a suggestion that reformers proceed with their eyes open, taking time to consider the potential demerits of the unified family court system before using valuable resources for its implementation. In U. S., the Unified Family Courts have been introduced and operated in many states. In fact,there is no agreed-on definition of what family courts are. But the general definition of a unified family court includes five elements: (a) comprehensive jurisdiction, (b) a one judge-one family system, (c) a therapeutic justice approach, (d) training of judges and court personnel, and (e)coordinated case management procedures. Much has been written about the potential success of unified family courts. Unified family court proponents share great optimism and enthusiasm for what they see as a solution to several of the problems facing court systems today. This enthusiasm should be applauded. As with any reform, however, unified family court advocates must stop to consider the possible drawbacks to the system that they propose. It can be summarized as three poins. First, UFCs proffer the judiciary to the citizen-consumer as a delivery organization at the “street level”, that play the role of the judicial bureaucracy as the administrator of social welfare and child protection. The adoption and development of such a policy initiative does not, however, answer important questions about the consequences of an organizational evolution. Second, it should be kept in mind whether these courts would preserve the substantive due process right of “family integrity” that protects the rights of parents to raise their children as they choose and allows children to grow up with their own unique family. It is needless to say that even the Problem-solving courts, believing they could assist the families anyway, should not ignore those constitutional and statutory restrictions. Third, Unified family courts have been so widely discussed and accepted that they risk becoming an easy political “solution” to systemic problems that poor families face. If the public believes that all family problems can be solved with the creation of a unified family court, advocates for children and families may move on to other problems. However, there is no evidence to suggest that courts are better at handing out therapeutic justice than other agency. 지금까지의 가정법원 제도 운영에 대해서는 긍정적인 평가가 지배적이지만 가정법원이 주어진 역할을 더 잘 수행할 수 있게 하기 위한 개선 방안의 모색도 꾸준하게 이어지고 있다. 이러한 입법론의 핵심은 작게는 가사사건 절차를 겪으면서 당사자들 사이의 인간관계가 더 이상 악화되는 것을 방지하고 크게는 가정법원이 가족 간의 갈등을 근본적으로 해결하기 위하여 적극적인 역할을 수행하여야한다는 것이다. 이와 관련하여 미국의 통합가정법원(Uniform Family Court) 제도에 관한 논의는 시사하는 바가 적지 않다. 한편으로는 이 제도의 도입 취지인 가정법원의 기능 강화, 치료사법의 구현 등을 고려할 필요가 있고 다른 한편으로는 이에 대한 비판론, 즉 삼권분립 원칙, 적법절차 원칙과의 긴장관계나, 통합가정법원이 실제로 가족문제를 효율적으로 해결할 수 있는지에 대한 의문에 대해서도 유의할 필요가 있다. 2012년에 이르러서야 비로소 가정법원이 전국적으로 설치되기 시작한 우리나라의 현실을 감안한다면위와 같은 미국의 논의들 중 후자 즉 비판적인 주장은 기우라고 볼 수도 있다. 그렇지만 미국의 사례에 비추어 볼 때 가정법원 제도의 ‘지나친’ 활성화는 뜻밖의 부작용을 낳을 수도 있다는 것도 감안하여미리 최적의 대안을 모색할 필요가 있는 것이다.

家庭法院の機能強化と国際私法

青木 清 전북대학교 동북아법연구소 2015 동북아법연구 Vol.9 No.1

This paper deals with the permission of Korean Family Court for an adoption. The amendment of Korean Family Law in 2012 introduced an adoption system which requires the permission of Family Court when an adoptee is minor. Until then, Korean adoption system required just both consents of an adopter and an adoptee. When an adoptee was under 15, the consents of his/her parents or guardian should be granted instead of the consent of the adoptee. Korean Family Court took no part in adoptions at that time. The amendment in 2012 attempted to expand the function of Korean Family Court in the family law field. It shall be estimated much positively. When an adoption is made inside Korea, this amendment is very understandable. If it is made by Korean people outside Korea, how does the amendment work to the adoption, especially Korean people residing in Japan? This is the main purpose of this paper. When a Korean couple makes an adoption in Japan, Korean Law shall be applied to this case according to Article 31 of Japanese Private International Law(Ho no Tekiyou ni Kansuru Tsusokuho). Thus, they are required requisites stipulated in Korean Family Law. The above permission of Korean Family Court is also necessary for the adoption. Of course, there is no Korean Family Court inside Japan. But Japanese Family Law has the similar system in which Family Court’s permission is required in an adoption when an adoptee is minor. In this situation, the Korean Supreme Court which directs the nation registry, has decided it relating to the nation registry that the permission of Japanese Family Court can’t take place the permission of Korean Family Court in adoptions. On the contrary to this decision, this paper insists on the substitution of Japanese Family Court in such cases. General speaking, the theory of Private International Law tries to admit substitution to systems of applicable law in the forum’s systems. It shall be admitted when both systems are almost same in functions, purposes, proceedings and so on. This paper analyses the high similarity of both Family Court’s permissions. Therefore, Japanese Family Court’s permission shall be substitute to Korean Family Court’s permission in an adoption when an adoptee is minor.

미국 통합가정법원 (Unified Family Court)에 관한 연구

안문희 ( An Moon Hee ) 사법정책연구원 2019 연구보고서 Vol.2019 No.17

Hamilton County Juvenile Court, the first family court in the world, as well as in the United States, was founded in 1914, and thus the U.S. family court has a history of about 100 years. Since the U.S. family court has recently been expanding its role as a problem- solving court based on the philosophical ideology of therapeutic justice, the family court can be considered as a Unified Family Court, distinguished from the existing family court. The problem-solving court that realistically implements therapeutic justice, a philosophical ideology based on the ethics of care, can represent the Unified Family Court for problems such as the loss of trial authority due to a lack of professionalism by the existing family court judges, insufficient opportunities for the relevant parties to express their opinions due to a lack of procedural rules, amplification of family conflicts caused by adversarial litigation structures, delay of litigation due to a surge in family cases, inefficiency in handling of cases due to unclear jurisdiction and unnecessary duplication of procedures, and conflicts of judgment on a family's complex case. The more specific and expanded role as the Unified Family Court includes not only the protection of family members, including parties to a lawsuit, from current and future conflicts faced by them by courts intervening in improving the actions or circumstances of parties to a lawsuit in family law cases, reduction of emotional confusion, implementation of efficient and effective trials by facilitating reconciliation between parties to a lawsuit and family members, and change of thought outside the framework of the existing formal logic regarding the role of courts and judges, but also ultimate solutions to social problems beyond judgment on legal disputes. Moreover, as part of essential case management for the fulfillment of these roles, the U.S. Unified Family Court has introduced systems such as first, team-based or one family, one judge (OFOJ) practice to solve family law-related cases; second, the provision of court guardianship welfare services; and third, the provision and connection of comprehensive services through external agencies. Recently, the Korean family court has also been expanding the guardianship welfare role as well as the original role of the court and emphasizing the ideology of therapeutic justice. Since the problems that arise in the U.S. family court are eventually problems of the Korean family court, it can be expected that the Korean family court acts as a problem-solving court that realizes therapeutic justice through the introduction of the foregoing three measures.

소년법상의 비행소년에 대한 임시조치 -한국·미국·일본의 관호제도의 비교검토를 중심으로-

강경래 ( Kang Kyung-rea ) 한국소년정책학회 2015 少年保護硏究 Vol.28 No.-

When the police, etc. clear a juvenile offender who committed an offense with statutory penalty of fine or lighter punishment, they shall refer the case to a family court, and with that of heavier punishment to a public prosecutor, excluding a case where the juvenile offender is cleared for violations of Road Traffic Act and for which the pecuniary penalty is paid in accordance with the traffic infraction notification system. A public prosecutor investigates the case and then refers it to a family court if there is probable cause to suspect that an offence has been committed or any other reason to subject the case to a hearing of a family court. With juvenile offenders under 14 and pre-delinquents younger than 14 years of age, measures provided by the Child Welfare Act have priority and a family court may subject them to a hearing only when a prefectural governor or the director of a child consultation center refers the juvenile to a family court. Police officers may investigate a case if necessary when they discover a juvenile and there exists, in reasonable view of objective circumstances, probable cause to suspect that he/she is a juvenile offender under 14. The police shall refer the case to the director of a child consultation center if they consider that the act of the juvenile involved specific types of serious offenses as a result of the investigation. The prefectural governor or the director of a child consultation center will refer the juvenile they have been notified of or received, etc. to a family court if they deem it appropriate to subject the juvenile to a hearing in a family court. When juvenile offenders under 14 violated laws or regulations involving specific types of serious offenses, however, the governor/director is required, in principle, to refer the case to a family court. 2 Procedure in a family court. (1) Investigation in a family court A family court is required to investigate any case referred by public prosecutors, etc. It can order a family court research law clerk to investigate it. (2) Classification in a juvenile classification home A family court may refer a juvenile to a juvenile classification home and request a classification of their predisposition by a ruling (protective detention) if it is needed for a hearing. In this case, the juvenile classification home accommodates the referred juvenile and classifies his/her predisposition based on the expertise it has in medicine, psychology, pedagogy, sociology, and other specialized fields in order to contribute to the hearing, etc. in a family court. As of April 1, 2014, there were 1 juvenile classification homes nationwide. In this study, South Korea and Japan, and were to be compared and discussed American protective detention.

美國 家庭法院의 現況과 改善 論議

尹眞秀(Jinsu Yune) 한국가족법학회 2008 가족법연구 Vol.22 No.3

This paper reviews the current state and the reform movement of the American family court. The family court serves various functions. Traditionally, divorce was the most important matter in the family court. As the no-fault divorce system was adopted in all jurisdictions of America, the focus was shifted from divorce itself to the division of the property, alimony and protecting the best interest of the child. Recently, dealing with the domestic violence and child abuse became other important function of the family courts. Because of the heavy workload, alternative dispute resolution(ADR) such as arbitration and mediation is widely used in the practice of the family courts. But it is pointed out that the mediation process is structurally unfavorable to the weak party. There is some criticism about the present state of the family court. According to it, judges and other personnel of the family court are poorly specialized and the decisions are often tainted by the gender bias and inconsistent. Some argue the specialized divorce court is the answer to the problem, while others assert that unified family court, which has comprehensive jurisdiction over the family law matters with specialized judges and other personnel, is the best solution. The lesson from the above discussion can be summarized as following. Firstly, the American family court has more comprehensive power than the Korean family court. Secondly, the use of ADR in family law matters is much encouraged in Korea. But the problem of ADR is not well recognized. Thirdly, the specialization of the judges and other personnel is the most important factor for the success of the family court.

일본에서의 가정법원의 역할과 기능

김원태(Kim, Won Tae) 한국가족법학회 2008 가족법연구 Vol.22 No.3

The family trial system of Japan may mark a new turning point because of the enactment of personnel suit law. However in practice, given that legal cases considered ones involving families are still under the jurisdiction of local courts, it is estimated that the unification of treatment of family cases in family courts has not been completed. In Japan, simultaneously with the activation of family courts, the Family Bureau was established under the General Secretariat of Supreme Court of Japan, assuming administrative matters related to family courts. As for family coordinator system, which was established as a part of the reform of the judicial system including the diversification and pluralization of judge provision, it is expected that the social experience, various knowledge, and expertise as lawyers may be sufficient to contribute to detailed and flexible adjustment and operation responding to the requirement of the party concerned. Also, the introduction of scientific fact-finding investigation of family court investigators based on the use of expertise is estimated to have notable significance in the development of Japan’s family trial system. In Japan, that executability had not been authorized in preservative disposition before judgment aroused severe criticism that the system lacked in viability rather than the temporary measure before adjustment. The system was authorized of executability in its improvement in 1980(Below Para. 3 of Art. 15 of the Domestic Causes Inquiries Act). Meanwhile, in cases in which care-care expense should be paid on a regular basis as a disposition on rearing of children added to a decree of divorce, credit execution can be commenced even for the concerned annuity obligation whose final term was not upcoming, when there is a nonfulfillment in its part(Para 2 of Art 151 of the Civil Proceedings Act). The above-mentioned administration of family trials in Japan’s family courts may serve as a good reference in the improvement of Korea’s family courts in the future.

가정법원 조사관 제도 개선 방안에 관한 연구

안문희 ( An Moon Hee ) 사법정책연구원 2018 연구보고서 Vol.2018 No.17

우리 가정법원 조사관 제도가 1963년에 시행된 이후로 약 55년이 지났다. 현재 가정법원 조사관의 수는 약 180명에 이르고 있다. 우리 가정법원이 지향하는 복지적·후견적 법원의 실현을 위한 여러 제도 중 하나가, 심리학, 복지학, 교육학 등의 인간관계학의 전문가를 사법적 절차에서 활용하는 가정법원 조사관 제도라고 볼 수 있다. 그러나 우리 가정법원 조사관 제도와 관련해, 법원 사무 직렬 공무원에 의한 조사관 업무 수행, 조사관 수의 부족, 연수 기회의 부족, 승진 기회의 제약, 사법부의 관심 부족 등의 문제점이 지속적으로 제기되어 왔다. 우리 가정법원과 마찬가지로 외국에서도 가정법원에서 인간관계학 전문가를 활용하고 있다. 미국은 상담이나 조정을 비롯한 이혼 전 부모 교육 등의 분야에서 법원의 전문 인력을 적극 활용하고 있으며, 독일은 상담이나 조정 등의 업무를 외부 기관을 통해 활용하고 있다. 그리고 우리와 가장 유사한 일본의 가정재판소 조사관의 경우에는 사실조사를 비롯해 상담 및 조정 업무까지 담당하고 있으며, 그 인원도 약 1,600명에 이르고 있다. 외국에서의 이러한 전문 인력의 활용과 관련해 우리 가정법원 조사관 제도의 운용에 있어서도, 첫째, 조사관의 선발 및 조직 체계의 개선, 둘째, 지역 단위의 순환보직 및 신규채용자의 단독배치 금지, 셋째, 사실조사 의견서의 도입을 통한 조사보고서의 비공개성 보완 및 문제점에 대한 피드백 활용, 넷째, 가사조사 기간의 효율적 이용 등을 생각해 볼 수 있을 것이다. 특히 가정법원 조사관의 전문성 제고를 위해서는 조사관으로 채용된 후에 실시되는 신규 연수 및 임용 후에 이루어지는 후기 연수의 확대 및 강화를 고려할 수 있다. 그리고 조사관에 대한 연수를 통해 현재 세분화된 가사조사관, 소년사건조사관, 가정보호사건조사관 및 아동보호사건조사관의 전문화 또한 기대할 수 있을 것이다. 궁극적으로 가정법원 조사관 제도의 운용 및 조사관의 전문성 확보는 우리 가정법원의 후견적, 복지적 서비스의 개선과도 직접적으로 연결되는 중요한 문제이다. It has been 55 years since the first probation officer was assigned to the newly established Seoul family court. Today, in 2018, the number of probation officers in Korean family courts is approaching 180―and nearly 150 of those officers are specialized. The aim of this new system was to enhance the family court’s guardianship and welfare functions by utilizing experts in fields of human relationships (e.g., psychology, welfare studies, and education) at judicial proceedings. But many argue that the goals of the new system have not been sufficiently realized due to a lack of family court probation officers, insufficient training, limited promotional opportunities, and a lack of care and attention by the Korean Judiciary. Acknowledging these problems, this research conducts a comparative legal analysis of similar systems in other countries, which may shed light on how Korea could improve its system. It is, in this regard, especially noteworthy that the function and role of family court probation officers in the U.S. are broader because U.S. officers also provide education for parents before divorce, counseling, and mediation services. The German courts are also providing counseling and mediation services by utilizing external agencies. In Japan, which has the most similar system to Korea, family court probation officers provide counseling and mediation services, as well as fact-finding tasks. There, the number of officers now amounts to 1,600. Based on a comparative analysis, this research examines suggestions for improving the effectiveness of Korea’s system. In particular, a number of suggestions are examined, including: streamlining the processes of selection and operation, managing officers as a team, increasing the number of specialized probational officers, rotating officers at a regional lev el, prohibiting new hires from being placed alone, providing feedback on problems of reports, and utilizing the periods of family investigation effectively. Increasing training opportunities for both new hires and long-term employed officers―in addition to specialized trainings for family probational officers, juvenile case probational officers, and family protection case probational officers―could also provide a good resolution. Ultimately, increasing the effectiveness of the operation and expertise of the family court probation officers could contribute to improving Korea’s family courts’ guardianship and welfare functions.

가정법원의 문제점과 개선방안

이유정(You Jung, Lee) 한국가족법학회 2008 가족법연구 Vol.22 No.3

Recently our society has been experiencing situations like sudden hike in the divorce rates, decline in the birthrates, violence in the families, all of which have contributed to the climax in the crisis of ""family breakup"", triggering the amendment of the laws in the direction of the government looking after family problems and resolution of the problems. At the same time, Family Court is demanded not only for its traditional ability, to solve problems by trials, but also to look after the welfare of children and women who are relatively in the weaker position, mediation and reconciliation to solve disputes, and welfare services related to families. However, our Family court and family trial systems do not seem to reflect all these needs. The following are the problems of the Family Court. (1) Family Courts are only installed in large cities such as Seoul, therefore not providing equal justice services to citizens in other areas. (2) Specialties such as judicial and examiners are lacking substantially in number. (3) In operation of the family trial, it takes a long time to wait for a trial but there aren’t any sincere mediations or judgements. (4) Divorce by agreement systems were improved, but there is a lack of programs such as making both parents agree on child caring in the process of divorce and people in charge. (5) In a divorce, trials have unnecessary problems that deal with a lot of emotions because of fault-based divorce, and lack of consideration for support in separationof properties. (6) The children of divorced families may not receive fostering expenses during the trial, and even after the trial they experience difficulties since the process of receiving it are very complicated. To solve these kinds of problems I suggest these solutions. (1) Establishment of Family Courts all over the country, (2) facility improvement of Family Courts, (3) increase the number of judges and examiners, (4) make mediation more effective and specialized, (5) quick dealing with the cases and trials considering the unique characteristics of family trials, (6) protecting women and children who are in a relatively lower position in things such as separation of properties and fostering expenses, (7) In addition, counseling facilities run by the executive branch and civilians, social welfare service centers, children welfare service centers, protection centers for victims from violence in families, and the Family Court isn’t well related right now, but connecting and using them systematically will maximize the effect even with a small budget. Looking at a long term, there needs fundamental solutions such as reforming family courts and the civil court by separating them as having a different organization and a system of personal management, strengthen the relations with the executive branch, and boldly increase the welfare budget. The welfare needed for solving problems related to family isn’t a problem to be just left entirely to the Family Court but something that needs to be solved by the government by actively intensifying welfare services.

소년법상의 비행소년에 대한 임시조치-한국·미국·일본의 관호제도의 비교검토를 중심으로-

강경래 한국소년정책학회 2015 少年保護硏究 Vol.28 No.1

When the police, etc. clear a juvenile offender who committedan offense with statutory penalty of fine or lighter punishment,they shall refer the case to a family court, and with that ofheavier punishment to a public prosecutor, excluding a casewhere the juvenile offender is cleared for violations of RoadTraffic Act and for which the pecuniary penalty is paid inaccordance with the traffic infraction notification system. Apublic prosecutor investigates the case and then refers it to afamily court if there is probable cause to suspect that an offencehas been committed or any other reason to subject the case to ahearing of a family court. With juvenile offenders under 14 and pre-delinquents youngerthan 14 years of age, measures provided by the Child WelfareAct have priority and a family court may subject them to ahearing only when a prefectural governor or the director of achild consultation center refers the juvenile to a family court. Police officers may investigate a case if necessary when theydiscover a juvenile and there exists, in reasonable view ofobjective circumstances, probable cause to suspect that he/she isa juvenile offender under 14. The police shall refer the case to the director of a child consultation center if they consider thatthe act of the juvenile involved specific types of serious offensesas a result of the investigation. The prefectural governor or thedirector of a child consultation center will refer the juvenile theyhave been notified of or received, etc. to a family court if theydeem it appropriate to subject the juvenile to a hearing in afamily court. When juvenile offenders under 14 violated laws orregulations involving specific types of serious offenses, however,the governor/director is required, in principle, to refer the case toa family court. 2 Procedure in a family court. (1) Investigation in a family courtA family court is required to investigate any case referred bypublic prosecutors, etc. It can order a family court research lawclerk to investigate it. (2) Classification in a juvenile classification homeA family court may refer a juvenile to a juvenile classificationhome and request a classification of their predisposition by aruling (protective detention) if it is needed for a hearing. In thiscase, the juvenile classification home accommodates the referredjuvenile and classifies his/her predisposition based on theexpertise it has in medicine, psychology, pedagogy, sociology,and other specialized fields in order to contribute to the hearing,etc. in a family court. As of April 1, 2014, there were 1 juvenileclassification homes nationwide. In this study, South Korea and Japan, and were to becompared and discussed American protective detention.