Guardianship for minors deprived of parental care is “a supplement and extension of parental care”, which, supposedly, prevents any vacuum in protection that may occur when minors, who need nurturing and care from parents, do not receive such care, as well as fulfilling the function of promoting healthy growth of such children.
However, the current policy is not ensuring that these responsibilities are being fulfilled. In the process of selecting a guardian, the Family Court may decide to assign the role of a “professional guardian” to a third party, such as a lawyer, legal staff, or social worker. In such cases, its institutional and practical limitations can lead to many problems, from the perspective of protection.
First of all, the current civil law limits the number of guardians to one, meaning that one guardian must be solely responsible for the safeguarding of the minor as well as the management of their assets, which becomes a burden. Professional guardians, especially, are specialized in certain fields - lawyers and legal staff in the legal fields, and social workers in the field of social work - and therefore, are less likely to act as professionally in other fields.
In addition, the professional guardian often do not reside with the minor, and may find it difficult to fulfill the role of safeguarding and education, as outlined in the current civil law.
In this case, the professional guardian will start get concerned about their sphere of responsibility, such as the minimum amount of nurture required to fulfill his/her responsibility as a guardian in a situation where the minor in question is not living with him/her. Currently, no education program or manual is in place to offer guidelines in such times of dilemma.
In addition, the cost of guardianship is paid from the minor’s asset, meaning that in the case where the minor in question does not have enough asset to fund these costs, the professional guardian has to pay for those himself/herself. From a practical point of view, this limits the possibility of quality safeguarding and protection.
As an improvement, the Family Court must select a guardian after taking into account the minor’s age, maturity and the situation the minor is currently in. For example, if the minor has a lot of asset or has the possibility of being involved in legal conflicts in relation to this, his/her professional guardian should be a legal professional. On the other hand, if his/her safeguarding is deemed more important than asset management, a social worker should be assigned the role of the professional guardian.
Also, it is imperative that a systemic educational system for professional guardians is put in place. The government needs to create a guideline or a manual for professional guardians to clearly define what the role of a guardian entails and provide continuous education on such, in order to fill any gaps that may occur as the professional guardian fulfills his/her role.
In addition to this, many minors who require guardianship are without family or friends, and thus do not possess the ability to pay for the costs of their guardianships. To address this, the government must expand “public guardianship” so that such minors can have access to financial support when receiving the guardianship that they need and are entitled to.
Ultimately, what is needed is an amendment of the civil law; so that multiple guardians and corporate guardians are allowed. This will allow any vacuum in minor protection to be filled, as well as making a more comprehensive safeguarding possible.
/ 주해친족법 제2권
/ 2013년 개정 민법 해설
/ 미성년후견제도 평가기준 및 쟁점, in 미성년후견제도의 현황과 쟁점
Some Reflections on the Guardianship of Minors
Powers and Duties of Guardian of Minor in the United States
/ 미성년후견제도에 관한 입법평가
/ 미성년자후견제도의 문제점과 개선방안
/ 동의대학교 지방자치연구소
/ 미성년후견제도의 현황-실무상 문제점을 중심으로-, in 미성년후견제도의 현황과 쟁점
The Implications of the Japanese Guardianship System of Under-aged Minors on the Korean System
Suggestions for Improvement of the Guardianship of Minors
A Reflection on the Legislative Defects in the Revision of Minor Guardianship System
A Study on the Guardianship System of Minors
Das Kindeswohl als Rechtsbegriff im Kindschaftsrecht