KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

I. Background and Purpose of Research

○An increasing need for national integration and compliance with the UN Convention on the Rights of the Child (UNCRC) [currently, with 196 countries as signatories] as a critical asset for building a sustainable State and community

-National integration has emerged as one of the key national goals, due to economic and social polarization, unfair distribution, the possibility of conflict between nations and races, and the trend toward hyper-individualization.

-The Republic of Korea ratified the UNCRC in 1991 but has shown a poor performance in the protection of children's rights, calling for legislative improvement.

○ An increasing need for stronger support systems for children subject to protection as an important element of national integration

-There is a large gap between regions and entities in the support policy for the self-reliance of children subject to protection, and there is no linkage or integration therebetween, resulting in imbalances and blind spots in support.

-It is necessary to shift the support system segmented by provider group to one centered on children in need of protection, and to seek comprehensive management and support measures for children and their families.

○A need for the improved systems for children subject to protection to comply with the UNCRC from a national integration perspective

-From a national integration perspective, there is a need for legislative improvement to eliminate blind spots in child protection in order to comply with ‘the principle of the best interests of the child’ stipulated in the UNCRC.

○Strengthening the support systems for children subject to protection based on national integration and deriving directions for improving the systems for children subject to protection to comply with the UNCRC from a national integration perspective

 

Ⅱ. Contents

○Relationship between children subject to protection and government policy

-The strengthening of the responsibility of the Ministry of Health and Welfare to protect children and youth has been proposed as one of the national tasks for children subject to protection. Other child- related  national tasks are also related to children subject to protection.

-In implementing the 2nd Basic Plan for Policies for Children, legal and institutional improvement is still required for children subject to protection. To this end, it is necessary to review the issue from a national integration perspective.

-National integration is an effort to create a virtuous circle that leads to individual happiness by gathering the capabilities of all citizens toward sustainable and mutually beneficial national development based on a unified culture such as communication and empathy.

-The relationship between the national integration promotion strategy, 10 indicators of national integration, the OECD's Child Outcomes (CO) indicators, and children subject to protection is strong in the political and social sphere and the social security and welfare sphere.

○ Legal nature of the UNCRC and domestic legislation

-The UNCRC consists of a preamble and 54 articles, with Articles 1 through 40 setting out the actual rights of children.

-The UNCRC has the same effect as law, which means that it can function as a judicial norm.

-In order to secure the effectiveness of decentralized policies for children subject to protection, policy considerations for the integrated operation of child-related committees, including those for children subject to protection, under the control of the Prime Minister, from a functional perspective.

-We can also consider clarifying the age range for children subject to protection as 18 years or younger, in an effort to alleviate possible social conflicts caused by the age range for the support systems for children and youth.

-Korea has basically shown a high implementation rate in its compliance with the recommendations of the UNCRC.

-The Child Welfare Act has mainly focused on expanding the scope of children subject to protection, increasing the period of protection, establishing the basis for sharing information on children subject to protection, and strengthening the obligation to explain to such children, in order to improve the safety and protection of children.

-Partial amendments to the Child Welfare Act pending in the National Assembly mainly focus on strengthening the government's role in the formation of children's assets, balancing the scope of child abuse by teachers, clarifying the scope of abuse, expanding the age range of children subject to protection, and establishing a legal basis for follow-up measures for children whose protection period has expired.

○ Legislative improvement plans for children subject to protection

-In terms of national integration, specific improvement measures include (i) expanding the age range of children subject to protection, (ii) addressing the issue of excluding children with disabilities, who have been discharged from residential facilities for persons with disabilities, from the policy of supporting self-reliance of children, (iii) balancing the support systems for the youth discharged from child welfare facilities and those discharged from youth facilities, (iv) establishing a legal basis for support systems for missing children among children subject to protection, and (v) considering the introduction of a child death review system.

-Improvement measures related to the recommendations of the UNCRC include (i) lowering the age range eligible for voting and joining a political party in consideration of all children, including children subject to protection, from the mid- to long-term perspective, (ii) establishing a system to ensure that all children, regardless of nationality, can access to child allowances, (iii) abolishing Article 4 (1) 3 of the Juvenile Act regarding juvenile offenders, and (iv) establishing a legal basis for ratifying the Optional Protocol to the Convention on the Rights of the Child on petition procedures. In addition, it is necessary to review areas that require legislative improvement despite Korea's implementation of the recommendations of the UNCRC.

Ⅲ. Expected Effects

○Academic contribution to the establishment of analysis criteria related to the rights of children subject to protection

○ Available as reference materials in the design of related legislation on the rights of children subject to protection

○ Usable in the amendment of statutes related to the rights of children subject to protection