RISS 검색 - 국내학술지논문 상세보기

다국어 초록 (Multilingual Abstract)

Many scholars see pre-1839 English child custody law as consisting of near-absolute paternal rights. These historians believe that the weakening of fathers’ rights began with the 1839 Custody of Infants Act, which created certain maternal custody rights. Other historians have noted that paternal custody was qualified even before 1839 by the Court of Chancery's application of the doctrine of parens patriae. This paper tells a different story and argues that the origin of incursions into the so-called ‘empire of the father’ was the 1660 Tenures Abolition Act, a statute that ironically seemed designed to strengthen fathers’ rights.
The Tenures Abolition Act granted fathers the right to appoint guardians to their children by will. According to Blackstone, the effect of the Act was to extend the father’s empire ‘even after his death.’ But by involving courts in child custody -even as enforcers of fathers’ rights- the Tenures Abolition Act created a tradition of judicial intervention that would eventually undermine those rights. This paper traces the development whereby court supervision of testamentary guardians led to court supervision of fathers themselves,
transforming the ‘empire of the father’ into the empire of the judge.
For the purpose of screening the history of English law, this paper focused three factors; prevailing views of the history of English Child Custody Law(Ⅱ), the source of judicial power-the regulation of testamentary guardians(Ⅲ), the regulation of fathers(Ⅳ).
The notion of Parental Responsibility which was adopted in English Children Act 1989 led to spread the change of ‘parental right’throughout the Global Society rapidily. It’s about time, I think, we gave serious thought to revise the notion of ‘parental right' in the Korean Civil Law.

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