KWDI Korean Women’s Development Institute

Abstract

Direction of Support System Reorganization in Line with Family Changes and Relevant Tasks

Hyo Jean Song

So Young Kim

Bo Young Sun

Yun Seon Hong

 

 

The purpose of this research is to examine changes in family and awareness of family support, to review the issues on support system in response to changes in family, and to come up with a direction for support system and system reorganization. The scope of this research is to explore the direction of reorganization mainly on economic support from the support system under the Civil Code (so-called private support system).

 

The structure of this research is as follows.

Chapter I presents the background and purpose of this research, and research details and execution methods.

Chapter II covers changes in family and support awareness based on analysis of statistical data from prior survey.

Chapter III contains a status review of current support system under the Civil Code, and issues on support and implications regarding changes in family based on survey and analysis of legislative materials and precedents including the law on family support.

Chapter IV reviews the current legislative status regarding the support system in other countries including Germany and Britain, together with implications on our legal system.

Chapter V presents the searches for support system reorganization direction under the Civil Code based on the details reviewed above, and proposes ideas for system reorganization.

 

Based on the research outcome, the summary of reorganization direction and relevant tasks for the support system is as follows.

 

First of all, the direction of private support system reorganization in line with the changes in family can be presented as follows. As for the private support system, we need to relieve inherent and restrictive support duties under blood ties and status, and need to provide system basis that will allow mutual support system based on the will and choice of relevant parties, thereby reorganizing the support duties as an obligation based on choice and action. In addition, in reorganizing the subjects and scope of private support, we need to clarify the rationale for providing support, with significance as essential and core existence, and to revise the broad scope of support relatives, in line with the reality, under the unit of relatives and blood relations with vestige of agricultural society.

Accordingly, we can set the principles on reorganization of support system under the Civil Code as follows.

 

First, the main basis and legal principles for support under the Civil Code should be identified from the relations based on one’s own intent, contract-based accountability, and accountability from one’s own action. At this point, mutual support obligations between spouses (the contracting parties in a marriage, relevant parties in a community, etc.) and support duties for minor children (children or teenagers) can be identified.

 

Second, though we pursue a welfare state, in reality, public support system does not completely replace private support system. The support obligation for lineal blood relatives would be acknowledged based on the recognition in the society, but its scope should be established in line with changing family and values, and mutual relationship needs to be considered.

 

Third, such direction should be in line with the bigger trend in our society, which is stronger public support system, to reduce economic dependence on family and to guarantee each individual’s economic foundation and safety net. Based on an assumption for such support system reorganization direction, the reorganization of support system can be suggested as follows.

 

□Reorganization of regulations for those who select mutual support

The main basis and legal principles for support under the Civil Code should be identified from the relations based on one’s own intent, and contract-based accountability. A representative example of support obligation based on selected mutual support relations would be mutual support between the relevant parties in a marriage, the spouses, under the current civil code. However, as variety and fluctuation in family increase, current private support system does not properly function. In reality, even though there are blind spots that are not entirely covered by public support system, just limiting the selected mutual support relations to a legal marriage does not just properly reflect the relevant party’s intent and the current status of support into the system, but also not responding to inevitably increasing burden of public support expenses and blind spots in the support system. Private support system needs to be reorganized focusing on relations, selected by relevant parties for mutual support, and it should include not only existing legal marriage but also other alternative relations and choices in the support system. In addition, relevant details need to be supplemented, and regulations to be revised. Therefore, it is proposed to establish the basis for the system, to respect the intent of relevant parties who wish to select mutual support relations such as life partnership, and to guarantee its rights and obligations, and these need to be incorporated into the support system. To implement this, we can review two options; by introducing the life partnership system, regulations can be established or applied at an equivalent level like spouses (Option 1) and entry into mutual support relations based on a contract can be guaranteed under the laws on support (Option 2).

 

□Clarification of support basis and priority for underage children

Support for underage children is recognized as the most essential and important part of private support in our society today. Unlike support for other relatives such as lineal blood relatives, the support duties for minors requires heavy accountabilities and priorities. The legal principles on the support for minors can be ultimately identified in accountabilities from relevant actions. A special act, the Act on Enforcing and Supporting Child Support Payment, has been enacted as a basis for implementation of policy support to enforce the underage child support in the society, and it demonstrates its significance in the society. Notwithstanding the awareness, there is no clear provision of evidence in the legislations on support, and legal basis has been interpreted in the provisions stipulating the details on parental rights. We hereby propose legislation of clear legal grounds on support duties on underage children, which is one of the key aspects of the private support in the support part of the Civil Code. Moreover, in case parental rights and nurture are separate between those with parental rights and nurturer, such as guardians for minors, foster home, institutional care, etc., issues on indemnification and legal basis may arise that cannot be resolved by indemnification, under the situation that practically support underage children. Therefore, principles and regulations need to be established on how to support minors and support duties for cases where parental rights and nurture are separate.

 

□Reduction of relative support scope and reorganization

It is necessary to change the scope of support duties amongst relatives, which is way too broad, in line with changes in family. As our society changes away from nuclear family, more towards more individualization, at the same time, the awareness and values on family are also changing. Therefore, the support system for relatives is no longer suitable for the current situation. However, in reality, the public support system does not completely encompass the private support system. So, the scope of support has to be reorganized incorporating the awareness of the current society, to reduce the scope. It is also proposed to set up exceptional clauses to make a judgment on support duties in consideration of changing family relations and awareness, and mutual relationship.

 

□Harmony between strengthening public support system and reconstruction of private support system

Reconstruction of private support system is in the same direction with strengthening of public support system. Only if there is stronger guarantee for individual’s right to life based on stronger public support, the support relationship can be established based on free choice under equal footing between individuals. Clarifying the basis for support responsibilities for minors, and support for minors under various family backgrounds will minimize the blind spots based on an assumption for stronger state responsibility to children. Reducing the scope of private support for relatives is a task that can be done together with strengthening the public support system. These two tasks, strengthening the public support system and reconstruction of private support system, should be executed in harmony with each other.

 

Research areas: Law&Policy, Family policy

Keywords: support, family support, private support system, family support in civil law