亡夫의 凍結精子에 의한 人工受精子의 法的 地位

정현수(Jeong Hyun-Soo) 성균관대학교 법학연구소 2006 성균관법학 Vol.18 No.1

  Currently, assisted reproductive technologies including in vitro fertilization are rapidly developing, but the formation of social consensus or institutionalization regarding this hasn’t been established yet. In Korea, in vitro fertilization, which could be called as a reproductive revolution and the opening of a new reproductive age, was first succeeded in 1985, and since then, a number of the procedures have been conducting with the increasing trend of preservation of frozen sperms, but there are no proper rules to regulate this practice. It has long been practiced the Artificial Insemination by Husband (AIH) generally among sterile spouses who want to have their own children in our nation, but the other artificial insemination techniques are also generally accepted. However, the use of frozen sperms after death, which included in AIH in its form, is considered to be still remained in a dead ground.<BR>  In other countries, since the legal questions regarding after death fertilization by using dead husbands’ frozen sperms were raised, the legal status of artificially inseminated babies has been approved through precedents and laws under a certain condition. Recently, a legal action for paternity recognition attracted people’s attention in Japan, which was raised by a person who was born through artificial fertilization by using dead husbands’ frozen sperms. Thus, it is a possible scenario that such legal problems regarding birth after death by frozen sperms could be raised in our country.<BR>  As mentioned above, the problems regarding fertilization after death is realistic and legal problems which might happen in Korea someday, this study was attempted to solve the problems in consideration of overall legal problems in aspects of family law including whether fertilization after death is to be allowed or not, for they are possible to be raised in association with artificially inseminated babies who were born through frozen sperms after their father’s death.

친권의 제한제도에 관한 일고

정현수(Jeong, Hyun-Soo) 전북대학교 법학연구소 2013 法學硏究 Vol.40 No.-

일반적으로 부모가 정신적, 육체적, 경제적 문제로 인하여 부모로서의 책임(의무)을 다하지 못하는 경우, 국가 또는 사회는 자녀의 최선의 복리를 위하여 친권에 개입하게 된다. 현재 우리 민법상 신분적 효력에 관하여 직접적으로 친권에 대한 개입을 명문화하고 있는 친권제한 규정은 친권상실제도 뿐이라고 할 수 있다. 그런데 현행법상의 친권상실선고 제도는 자녀의 권리를 보호하기에는 많은 문제점을 내포하고 있어 거의 제 기능을 하지 못하고 있다. 따라서 그동안 계속하여 그에 대한 입법보완의 필요성이 제기되어 왔다. 우리 민법상의 친권상실선고제도가 진정한 의미에서의 자녀의 복리형 친권상실제도로 거듭날 수 있기 위해서는 이에 대한 전면적인 재검토는 필수적이라고 할 수 있다. 따라서 본 연구에서는 친권상실선고제도가 내포하고 있는 문제점과 그것이 실질적으로 기능할 수 있도록 하기 위한 개선방안에 관하여 고찰한다. 친권제도의 개선을 위한 친권의 제한제도로는 자녀의 구체적 양육상황 그리고 자녀의 복리가 위태롭게 되는 각 사안의 유형과 정도에 따라 국가가 적절한 개입을 할 수 있도록 하는 친권의 일부제한, 일시정지, 친권상실, 친권자의 동의에 갈음하는 심판 제도 등에 관하여 검토한다. If parents are unable to discharge their parental responsibility on account of the mental, physical, or economic problems, the governments or the communities are usually supposed to intervene to make up for the parental rights for the best interest of the children. The only written regulation on the parental rights related to the effects of the position in the Family Law of Korea is the system of termination of the parental rights. However, the current law which includes the sentencing on the termination of them has lots of problems and has not been working properly. Therefore, it has been said that it needs to amend the Law to an extent. It is essential to review the whole system of the termination of parental rights in the Family Law of Korea to improve the present paradigm of sentencing on them to achieve the better welfare of the children. So this paper examines some problems of the Amendments of the Law for the practical use. The Part 2 focuses on the regulation system of the parental rights of the other countries such as Germany, France, and Japan as a whole. The Part 3 discusses about the problems of the current Family Law of Korea related to the termination of parental rights and shows some recommendations on the desirable Amendments including the tentative suspension of parental rights, and the restrictions of them etc.

改正戶籍法上의 개인정보보호에 관한 연구 : 개정호적법상의 문제점을 중심으로 하여

정현수(Hyun-Soo Jeong) 한국비교사법학회 2002 比較私法 Vol.9 No.1

부양의무의 해태와 상속권 제한

정현수(Jeong, Hyun Soo) 충북대학교 법학연구소 2021 法學硏究 Vol.32 No.2

Recently, in society, there has been a consensus that inheritance rights should be limited for those who do not fulfill their duty of support or harm their family. In response to this, various bills have been proposed. In addition, the Ministry of Justice announced the amendment to the Civil Code, known as the ‘Late Goo Hara Act’, on January 7, 2021, and submitted to the National Assembly on June 18, 2021. The amendment primarily deals with how in case the spouse of the decedent, or a person who becomes an heir pursuant to Article 1000, commits a reprehensible act against the decedent, the loss of inheritance rights may be filed with the Family Court. However, many criticisms have been raised regarding the issues related to the aforementioned amendment, and as one of the alternatives, the introduction of a system for loss of inheritance for legally reserved portion along with the expansion of the inheritance disqualification system have been introduced. Accordingly, the following study reviews the main legislative issues focusing on the details and problems related to the amendment to the system for loss of inheritance rights. The societal impact therefrom is expected to be huge, including the private legal relationship of the citizens. It is necessary to thoroughly examine how to rightfully put the amendment into practice in ways not contradictory to the existing inheritance law system in consideration of the people s feelings towards the inheritance law system.

가족관계등록법의 문제점과 과제

정현수(Jeong, Hyun Soo) 한국가족법학회 2008 가족법연구 Vol.22 No.3

Since the legislation of the Civil Law, the “head of a family” system in the Law had been criticized in several aspects, and finally it was promulgated to be unconstitutional by the Constitutional Court of Korea on February 2005. According to the decision, that system was abolished next month, and the New Act, the Act on the Registration, Etc. of Family Relationship(hereinafter referred to as a “Family Registration Act”), was legislated and enforced as a substitute of the old One. Therefore, this paper examines on the problems concerning the several contents of the Family Registration Act, which is a new identification registration law. In the Chapter Ⅱ, the comparative study is carried on with the identification systems of other countries including Germany, the Great Britain, and the United States. In the Chapter Ⅲ, the outline of the history of legislation of the Family Registration and the differences between the New and the Old is examined. In the Chapter Ⅳ, the problems of the Family Registration Act are examined, and the Recommendations are shown on these subjects. We can find the intentions to realize the purposes of the Constitution such as the dignity of the individuals, the gender equality, and the protection of privacy in that Law, especially by way of the Individual Filing System of the registry. However, there are still a few problems left that should be improved. Therefore, that Law should be revised to be a desirable one to realize the spirit of the Constitution.

親生推定 法理에 관한 小考

정현수(Jeong, Hyun Soo) 충북대학교 법학연구소 2019 法學硏究 Vol.30 No.2

Recently, formations of family relations in Korean society have been diversified in accordance with the changes being taken place in society. Especially, the development of artificial reproductive technology has enabled infertile couples to give births. Under these circumstances, the civil law on presumption of paternity is questioned as to whether it conforms with the diverse forms of paternity. Moreover, Section 844 of the Civil Code on the presumption of paternity has been a subject of debate since its enactment, which primarily focuses on how to resolve the inconsistencies between legal paternity and true kinship. As part of the efforts to resolve these issues, the former Civil Code, Section 844 (2), relating to those who are born within 300 days after the termination of marital relations, has been concluded as infringement of constitution due to the violation of maternal rights and basic rights of marriage and family life. As a result, the revisions have taken place to relieve the action of denial of paternity. In particular, based on the recent ruling by the Supreme Court for the first time that a child born from artificial insemination using a sperm of a third party with the consent of husband during the marriage, is reasonably assumed to the child of husband under the provisions of the presumption on paternity (Civil Code, Section 844 (1)). This has again triggered the legal interest. In addition, as a review of existing cases regarding the exception of the presumption on paternity, the Supreme Court judged that if the wife got pregnant and gave birth during the marriage, the child is assumed to be the husband s child even if the genetic test reveals that there is no kinship with the husband. The ruling has once again triggered legal interest in the law related to the determination of parental relations and presumption of paternity through a public plea on the verification of the absence of paternity relations in the Supreme Court on May 22, 2019. In this paper, the ruling of the Supreme Court will be studied as well as the review of issues related to the interpretations on the restriction of the existing law on presumption of paternity.

남북 주민 사이의 상속회복청구와 제척기간

정현수(Jeong Hyun Soo),홍선기(Hong Sun Ki) 충북대학교 법학연구소 2018 法學硏究 Vol.29 No.1

The core of the case could eventually be compressed into protecting the interests of the heirs in South Korea and those in North Korea. Under the Constitution, the logic that North Korea is part of the Republic of Korea and should be treated the same as the South Korean people could be too much of a case of ignoring the uniqueness of inter-Korean relations. Peaceful unification, the main principle of the Constitution, is based on humanitarian and brotherhood support for North Koreans. In this way, it is possible to restore the identity of the actual people. Therefore, based on this special nature of inter-Korean relations, the issue of exclusion period under the Inter-Korean Family Act should be interpreted. It is too formal to apply our Civil Act as a general law to North Koreans without considering the special nature of inter-Korean relations. In fact, since North Korea is an independent country according to international law, it is difficult to apply the civil law immediately as a mere Korean. Therefore, we should not solve this problem without worrying about international jurisdiction. As the Constitutional Court expressly stated, the right to recover inheritance is not intended to protect the unrecognized or the untrue heir, but to rescue the true one. Then, the problem of the exclusion period should also be set in terms of protecting this true heir. Article 13 of the Korean Constitution is unique in that it not only stipulates criminal nonretroactivity but explicitly prohibits the deprivation of property rights by means of retroactive legislation. Even if it is true that it is a retroactive legislation, it can be justified as a public interest where the value of protection of true heirs takes precedence over the value of quick settlement of legal relations through the exclusion period.

家庭暴力과 離婚後 子女養育에 관한 一考

정현수(Jeong Hyun-Soo) 충북대학교 법학연구소 2008 法學硏究 Vol.19 No.1

  This article examines problems relating with divorce, parental rights, and the rearing of children caused by domestic violence(hereafter DV) as a domestic case. Namely, the article investigates how DV is related with the rearing of children after divorce and what interpretation our family law has adopted until now. Also, the article obtains hints referring to while the law of international human rights has played a leading role mainly by UN the American law has introduced problems with DV into its family law in regard with the parental responsibility law from 1970.<BR>  The second chapter following the introduction of the first chapter looks at the reality of DV in our nation and the status of DV in divorce. As the third chapter describe the contents about the law of rearing child and DV of America, it investigates laws related with DV, parental responsibility law, DV in America.<BR>  The fourth chapter examines effects of DV to children, standards in the determination of a person in parental authority and DV, and standards in the determination of visitation rights and DV.<BR>  Since our nation does not provide concrete standards that can give practical help to the judgment of the court besides abstract welfare principles for children, new standards through precedent cases has not yet been formed. In addition, only a few precedent cases showed an attitude that does not significantly consider the violence of a spouse when a person in parental authority is determined after divorce. However, as shown the investigation of America’s cases, DV of parents affect children obviously and badly. Thus, our family law should also clearly state DV as a consideration factor in the determination of a custodian and a person in parental authority and visitation rights. Moreover, in the case of a divorce degree caused by DV, the court should make a determination that can concretely realize the welfare of children according to individual cases. In particular, when judging a permission of visitation rights and its continuity, the best welfare of children should be the supreme standard.

상속분(相續分)의 선급(先給)으로서 특별수익에 관한 재론(再論)

정현수 ( Hyun Soo Jeong ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.4

Article 1008 of Korean Civil Law, which included a bad practice, prescribed that the inheritee who was actually a head of a family and inheritor who was given that status were guaranteed more by the law than they had to be. Therefore, the special benefit system was amended to achieve a just and fair relation among inheritors, which removed the cause of decrease of the other inheritor`s share by regarding a given interest to an inheritor as an initial payment. However, the Civil Law in force has two serious problems as follows; firstly, the intent of the inheritee with a view to maintaining the equity of shares among co-inheritors is not considered at all in current special benefit system, and secondly, even the testamentary gift goes to mediation with no consideration regardless of the explicit intent of the inheritee. I strongly do wonder whether the existing law is right. So, this paper discusses on the duty to reflect the intent of the inheritee preferentially through the prohibition of mediation on the special benefit, and on whether to include the inheritor by representation in the scope of special beneficiary which has to keep the duty of fairness at the time of the commencement of inheritance, and so on.

家族法改正의 最近動向과 課題

정현수(Jeong, Hyun-Soo) 충북대학교 법학연구소 2008 法學硏究 Vol.19 No.2

Since the legislation of the Civil Law, the "head of a family" system in the Law had been criticized in several aspects, and finally it was promulgated to be unconstitutional by the Constitutional Court of Korea on February 2005. And the Civil Law (the Chapter of Kinship and Succession) including the abolition of the "head of a family" system was revised shortly after, with the exception of some part, and implemented in March 31, 2005. The abolition of "the head of a family" system, which was the core subject of the Family Law, is considered a revolution that brings a huge influence on the Korean family system. In particular, the Revised Family Law of 2005 is significant in the context of the improvement of the family system to realize the human rights and gender equality in marriage life, abolishing the unreasonable systems such as the prohibition of marriage between the parties with same family name and origin, and the head of a family system. And the Revised Family Law of 2007 also pursues the realization of the gender equality and the well being of the children as follows; the adjustment of mismatch between the age of engagement and marriage, the enforcement of the cooling-period system in divorce, and the requirement of the consent of the fostering conditions between parents. Therefore, this paper examines the several points of the Revised Korean Family Law. In the Chapter Ⅱ, the family head system recently abolished, the definition of the family relating the abolishment, and the Children's family name and origin is examined. In the Chapter Ⅲ, the outline of the contents on the Revision is introduced and reviewed relating the prohibition of marriage between the parties with same family name and origin, the procedure of the divorce which requires the consent between parents, and the matrimonial property system etc. In the Chapter Ⅳ, the Revised Provisions relating the parentage law are examined. The two revisions of the Civil Law (the Family Law) in 2005 and 2007 influenced so much on the Korean Family Law, and this article will show the desirable model of the Family Law meeting with the demands of the society.