자녀의 인도청구에서 직접강제의 허용 여부에 관한 소고(小考) - 자녀의 의사에 반하는 강제집행의 허용 여부를 중심으로 -

초록

The legal issue of enforcing a court order for the return of a child when the child refuses to comply is not a straightforward matter. It involves a conflict of opinions, intertwining various factors such as parental authority, the child's will, and the child’s welfare. These factors can lead to different conclusions depending on which aspect is prioritized. Parents, as holders of parental authority, have the right to designate their child's residence, and it is generally expected that the child lives at the designated residence. If a child resides elsewhere against the parent's will, the parent can bring the child back themselves, or if that’s not possible, they may request a court order for the child’s return. However, if a child with the capacity to make their own decisions refuses to return and lives at a different location by choice, the enforcement of parental authority faces obstacles. In such cases, the only remaining option might be the direct enforcement of the court’s return order, which could ensure the exercise of parental authority. However, since the subject of this enforcement is a sensitive minor, forcing them to live at the designated residence against their will through coercion, which involves the use of threats or force, might lead to other issues. At this point, we must seriously consider what constitutes a solution in the child's best interest. Given that parental authority is a right and duty granted by the state for the realization of the child’s welfare, the exercise of this authority must be limited by the standard of the child’s welfare. That is, parental authority can only be exercised within limits that do not harm the child’s welfare. From this perspective, whether to permit coercive enforcement against the child’s will should ultimately depend on whether such enforcement contributes to the realization of the child’s welfare. Therefore, if a child is currently stable and their welfare is not at risk, even if they reside against the wishes of the parent, coercive enforcement against the child’s will should not be permitted. For example, in the case where a father is designated as the custodial parent after divorce, but the child is currently living happily with the mother and does not wish to return to the father, forcibly returning the child despite their resistance could endanger the child’s welfare. Such an outcome would contradict the fundamental purpose of recognizing parental authority and custody rights in the first place – that parental authority is a duty and right granted to parents by the state “for the realization of the child’s welfare.”

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