Linking Criminal Proceedings with the Restriction of Parental Authority in Child Abuse Crimes : Focusing on French Legislation

Vollständiger Abstract

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Korean law provides various measures under the Civil Act and the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes to restrict the parental authority of parents who commit child abuse. These measures, however, are rarely used. Although restrictions on parental authority are not necessary for every child separated from their family of origin, the criminal conduct and risks identified in criminal proceedings may not lead in a timely manner to judicial review of parental authority, even where an abusive parent interferes with the child-protection process or abuses parental authority, or where long-term legal protection is required. This is because criminal proceedings and family-court proceedings are institutionally separate: judicial review of parental authority requires a separate application; the continuation of protection following an interim measure restricting parental authority requires a separate subsequent proceeding; and neither the cases in which such applications must be made nor the entities responsible for making them are sufficiently clearly defined. Moreover, Korean law does not adequately protect, through restrictions on parental authority, children exposed to domestic violence against the other parent or the abusive parent’s other minor children. To address these problems, this article examines French law, which systematically links criminal proceedings to restrictions on parental authority. For certain serious offenses, French law provides that the exercise of parental authority and contact rights is suspended by operation of law once a parent is criminally prosecuted or placed under formal investigation by an investigating judge. At the conviction stage, the criminal court determines whether and to what extent parental authority should be restricted in light of the seriousness of the offense. French law also includes offenses against the other parent among those that may give rise to restrictions on parental authority and allows such restrictions to extend to the abusive parent’s other minor children. Because Korean law entrusts the family court, in separate family proceedings, with restrictions on parental authority and the resulting appointment and supervision of guardians of minors, the French model should not be transplanted wholesale. Instead, procedures should be established to coordinate the respective functions of criminal courts and family courts. On this basis, this article proposes the following legislative reforms to provide children with effective protection from the parental authority of abusive parents. First, a criminal court entering a conviction for a child abuse offense should determine ex officio whether parental authority should be restricted. For serious child abuse offenses, the court should order the loss of parental authority unless exceptional circumstances exist. This reform should be accompanied by guarantees of the parties’ procedural participation and right to appeal, as well as coordination with procedures for the restoration of parental authority and for the family court’s appointment and supervision of guardians of minors. Second, when prosecuting a child abuse offense, prosecutors should assess whether to apply for an interim measure restricting or suspending the exercise of parental authority. For serious offenses, such an application should be mandatory unless exceptional circumstances exist, and the interim measure should be renewable for as long as necessary, subject to periodic judicial review. Third, exposing a child to domestic violence against the other parent should be expressly recognized under the Civil Act as an independent ground for restricting parental authority, and cases in which the child has been directly or indirectly exposed to such domestic violence should be included among those in which criminal courts are required to determine whether parental authority should be restricted on parental authority.