민법개정안의 친양자제도에 대한 소고

김우덕 한국법학회 2002 법학연구 Vol.0 No.10

The Korean Civil Code, especially in its adoption system, mainly consists of family-centered provisions and some additional child-centered provisions in accordance with the worldwide tendency of adoption law to make children to be main body of rights. This dual type of adoption law makes it difficult to interpret the law consistently.Anyway, in Korea, until recent years, the majority of adoptions were made in respect of illegitimate children who were placed for adoption very shortly after birth. The "adopted" baby usually has been registration as a legitimate child, and current law and judicial precedent of the Supreme Court of Korea do not prohibit such registration.Such registration, though not illegal, was not for welfare of the child, but for the heritage of the position of house-master.Whatever the reason may be, the parents of the "adopted" legitimate child want to bring up their child like their own baby. But sometimes it becomes impossible to bring up their baby even as a adopted child by the judicial judgment he is not their legitimate son and should be handed upon the man who are opposed to adopt him.This study, bearing such issues talked before in consideration, is centered on the problem of legistration of full adoption.

離婚原因에 대한 破綻主義의 問題点과 그 批判

金又德 新羅大學校 1984 論文集 Vol.16 No.-

We must not to forget to consider the problems of children before everything else in the domestic bankruptcy. In these days, as the result of the thought of free divorce, a various of social problems have been brought out, because some men and wives who are lacking in discretion would like to think of the problem in limitation only to themselves but neglect the problem of their children. Especially in America, the Supreme court has presented the judical precedent that the rights to divorce as well as the rights to marry have been regarded as the fundamental human rights, there is a tendency that it is even regarded as unconstition to claim for the responsibility of the other side in law wuit of divorce, and the bankruptism is spread to have influence upon the law of marriage and/or the law of divorce from Europe to other countries. Divorce is the remedy of vice, may be the excuse of free divorce, but it is only an attempt to remedy the failure of marriage, and cannot be the complete method of the remedy of failure. Therefore divorce is one of the greatest unhappiness in life. If the aim of most communities exists, it goes without saying that the establishment of the domestic virtue should be requested first. Before we appeal to the last resort of divorce, we should realize the fact that the exercise of our rights should be in accordance with public welfare on both sex's equal status, and first we should perform our duties faithfully in home life. According to the reasons mentioned above, free divorce should be firmly restricted. As there are laws where there are communities, so there are moral laws where there are home. To begin with, when the small community of home observes its laws, there are always happiness and calmness in home life. Because each home is a unit of a community, it will have a deep influence on its community. If we live a good home life, it is expected to have better communities. In thinking so, it is believed that our civil law for divorce is necessary to be futher studied forward whether to adopt the casue of divorce to be supproted the bankruptism or not. In the present paper, it is reviewed about the tendentcy to amendment of the law of divorce in the last sevoral years in every countries, the problems of bankruptism,the examples of legislation in bankruptism ets., and the problems of social policies to home and the home life education following to them.

完全養子法制의 實證的 硏究

金又德 新羅大學校 1988 論文集 Vol.26 No.-

I introduced and analyzed the result of a survey of actual condition that had been enforced for the understanding of a social consciousness about the Adoption Problem in our present country. Specially, I investigated and analyzed minutely the survey of actual condition because it can be the important materials of legislation about the approach for the element of Full Adoption. Moreover, I extracted the legislative subject for the introduction of Full Adop-tion and I groped for the solutions such as important matter, procedure, effect and cancellation, etc.

西歐諸國의 養子法에 관한 考察

金又德 新羅大學校 1990 論文集 Vol.29 No.-

Nowadays, we need to take notice that western countries abolish the contract adoption under a mutual agreement with persons concerned and select the formation of adoption with a national sentence and devise the practical compound interest of adoption with appointment for a management and a previous examination. In addition, the appointment of full adoption system which originates the complete legal effect by cutting relation between an adopted son and his own parents is a common tendency for the adoption law of western countries and the form without an adopted son's expression of a registrar is in general use in many countries. I Think that these modern trends of the adoption law will have a part for the adoption-law revision of our country.

모세오경(tentateuch)에 나타난 법원리(法原理)

金又德 新羅大學校 2001 論文集 Vol.50 No.-

改正家族法의 內容과 그 問題点에 對한 考察

金又德 新羅大學校 1991 論文集 Vol.31 No.1

The Korean family law, legislated and became effective in 1960, was amended by the National Assembly of the R.O.K. in 1989. The amended family law will become effective in 1. January. 1991. The now family law of Korea, is a product of the cultural and social values based on the Confucian influence of the past several hundrd years and in inforced the taditional male superiority in favor of the man-centered Confucian familysystem. But this sexual discrimination in the Korean family law is unjust and unsuited to the sexual equality in the Korean Constitution. The 1989 family law, therefore, eliminated this sexual discrimination in the present family law, and protected the rights of women as much as men in the Scope of relatives, the marriage the parental authority, the mother-child relationship, the property inheritance and so on In this family law it is very important that is transfered the Headship inheritance system to the optional headship succession system, and eliminated the much authorities of the householder, and established some new systems, these are the fair distribution of property. Which acquired during the marriage through co-assistance, between husband and wife in the event of divorce. the successor's claims to the his assistanted portion on the deceased's property in the co-inheritance, and the distribution to the person who lie in special relationship with the deceased if there is no successor. In this paper I explained these provisions and new systems of the amended Korean family law and dealed with some problems on these.

人間의 細胞·組織에 관한 所有權問題 硏究 : 加工의 法理를 中心으로

金又德,宋榮珉 신라대학교 사회과학연구소 2000 사회과학연구 Vol.- No.4

改正民法上의 面接交涉權의 諸問題에 관한 考察

金又德 新羅大學校 1997 論文集 Vol.44 No.1

The child custody have been social and legal problem with uprising of divorce. The civil law act, amended in 1990, has a §837 ② to solve this problem. Right of access do not mean the right of person in parental authiority or custodian but the right of parents who do not protect or custody his child in actually. It also means that the right of making access to child and exchanging correspondence. Essentially, the right of access is the natural right of parents and the right of the child. And, grandparents has the right of access within the limit coinciding the best welfare of the child. With the all consideration for the child welfare, the right of access could be limited and ristricted. When the person who has the right of access is interrupted or repudiated, reasonable pre-disposal and compulsory can be executed to realize the right of access.

所有權理念의 變遷과 그에 비친 人間像에 대한 考察

金又德 新羅大學校 1985 論文集 Vol.18 No.-

The is of ownership is a representative element speaking for all the political, economic, social and cultural structures and situations of the age. Therefore, in order to study the process of social changes it is necessary to study how the idea of ownership has been changed according to the age and how the image of human beings has been reflected on the age. Furthermore, individual or libral thought of the 18th and 19th century went through great changes in the 20th century, and modern discovery of human beings exposed much contradiction in the 20th century, and finally it came to undergo revision. If we call the 18th and 19th century the age of individual or character, we can call the 29th century that of human beings. The image of human beings in the 18th and 19th century was abstract, universal and transcendental, but that of the 20th century is concrete, individual and experimental. Accordingly, man has discovered 'society' which was not discovered in modern ages and 'human relationship' on the basis of individual. Consequently, the modern view of law should be at once 'individual and physical view of human beings.' In the idea of ownership, in like manner, its ideal basis should be both sided-individuality frankly admitting the selfish instinct of human beings and sociality added to it. In conclusion, man is not an individual animal, nor is he a social, but an animal that has both individuality and sociality.

前近代的 養子制度에 관한 硏究 : 現行民法을 中心으로

金又德 新羅大學校 1987 論文集 Vol.23 No.-

(1) After-death-adoption(死後養子) system, being a typical example of a family-oriented adopting system, one may regard adoption after the adopter's death who was taken as a principal of the status action. A family(家)-oriented adopting system lies far from the ideal of modern adopting systems. Thus Korea's Adoption of Children Act should be shifted to a child-oriented system which favors children's welfare. It would then be a logical consequence to forbid adopting after the adopter's death. It is widely agreed that succession of property is not accessible but Succession of familyholdership to one who is adopted posthumously. The practical validity of posthumous adoption is dubious in this respect. (2) Interpretive questions arise as there is no explicit provision requlating whether an adopted child is to be assimilated to its adopter with respect to its family name and its place of origin(本). In opposition to the theory that the child holds its original family name based upon the conventional preservation principle of family names, there is a positive theory that the adoptee's surname has to be assimilated to the adopter's even in the absence of explicit provisions as necessitated by the principle of the Same Surname in family(781. 1). In my opinion, current civil law assumes that names remain unchanged. The Special Example of Adoption Act provides an express provision. But in all the cases where a spurious report on birth replaces the practical report on adoption, my opinion has everything in comon with the positive theory. (3) Current Civil Code provides the possibility of adopting a son-in-law. While a majority takes it adequate and in line with the Equality of Both Sexes Principle, I do not think it is adequate. It is far less practical from the point of view that the children of the adopted son-in-law take on his father's family name as well as his place of origin than a son-in-law by marriage into the family. And it is against Korean's way of thinking as it makes a man's adoptive parents and parents-in-law and real parents at the same time to the man's wife as well as making a man stand in the relation of husband to his sister-in-law. Hence it needs to be abolished. (4) Modern adoption law have an object that poor children who don't have their own home and family should grow under the wing of their beloved parents and at same time adults who don't have their own babies have their beloved children. But traditional adoption of Korea is much far from such an aim. For these reasons full adoption system, from this viewpoint, is, I think, the best for the persons want adopted child and the children to be adopted.