부양청구권 및 부양비용 상환청구권에 관한 몇가지 해석론적 제안

Abstract

The responsibility for taking care of the person who cannot maintain himself or herself has no longer been imposed only on his or her family and relatives, due to the change of family relations. State becomes involved in the protection of such a vulnerable person by way of financial support so as to share family’s burden. Taking the change of family relations into account, liabilities by relatives of maintenance should be adjusted as well to such a change, This paper argues as follows. Firstly, the responsibility of absent parent for maintaining children is imposed vis-a-vis children, but not caring parent. The same principle should be applied to social benefits for children, which means that the beneficiary is child, not parents, even though parents actually claim such a benefit against government or local authorities. Secondly, the claim by dependants to maintenance against absent parent or responsible relatives should be differentiated from the claim by caring parent or relatives who maintained dependants without legal liability to reimbursement of the expenditure against absent parent or responsible relatives. The former is an actual right, whose content can be fixed with considering the ability of responsible parent or relatives to maintenance, but up to the necessity of maintenance. However, the latter is the right to compensation, which can be measured only by a court decision, because such a right has been accepted by precedents, rather than legislation. It is the time that the relation between maintenance duty of relatives and security duty of state should be readjusted. From the perspective of desirable legislation, it is necessary to share the burden of support and maintenance between society and family. It means that in case of financial support by the state for the dependant, the state should have the right to recourse against the responsible relatives who have sufficient financial resource, but nevertheless do not discharge their duty.