미성년자의 복리를 위한 검사의 공익 대표 기능에 관한 소고

초록

In principle, civil status and property relations are governed by the free will of the parties involved based on the principle of private autonomy. However, in cases of severe child abuse, neglect, or human rights violations by parental authorities, there is a critical need for the state to actively intervene and implement judicial safeguards. Accordingly, current South Korean law provides a mechanism to realize the substantive rule of law and complement the limits of private autonomy through the prosecutor’s role as a representative of the public interest in civil matters, functioning across various domains such as stabilizing family status relations, protecting the socially vulnerable, and establishing economic public order. Under the Civil Act, the prosecutor’s role as a representative of the public interest to ensure the welfare of minors empowers them to file lawsuits in family courts for the forfeiture, temporary suspension, or partial restriction of parental rights, as well as the revocation of representation and property management rights. Furthermore, prosecutors are authorized to intervene in the appointment and supervision of minor guardians. Additionally, within the realm of special acts enacted to enhance the urgency and effectiveness of minor protection, the prosecutor’s public interest representation function is strengthened into a mandatory obligation. Under statutes such as the Child Welfare Act, the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes, and the Act on the Protection of Children and Juveniles against Sex Offenses, if the perpetrator of a child abuse or sex crime is the parental authority or guardian of the victimized child, the prosecutor is legally required to petition the court for a declaration of forfeiture of parental rights or a modification of the guardian. Examining foreign legislation, Japan, similarly to South Korea, grants prosecutors the status of petitioners for restrictions on parental rights, and has recently established the ‘Children and Families Agency’ as an independent dedicated body directly under the Prime Minister to serve as an integrated control tower for child protection policies. Meanwhile, Germany has established a unified and integrated system centered on the Youth Welfare Office (Jugendamt), a specialized public child welfare institution, which seamlessly connects parental rights restriction measures, the role of official guardianship, and direct child protection services. From a comparative legal perspective, the cases of Japan and Germany offer significant implications, as they ensure that judicial intervention and administrative remedies are not fragmented but operate organically under the single objective of ‘the welfare of the child.’ In South Korea, the state- guardian function of public interest representation performed by prosecutors in civil and family matters must be redefined as a judicial safeguard that transcends the limitations of a criminal prosecutor to realize the human rights and welfare of minors, who are socially vulnerable. To achieve this, it is essential to establish an organic cooperation system with local governments and child protection agencies, such as the National Center for the Rights of the Child.

키워드