Parental authority
Parental violence is the exercise of parental power within the family . Parental authority enables parents to dispose of their children at their own discretion, analogous to state authority through which the state disposes of citizens .
In crime prevention , the term is used with a different meaning as the use of violence against children by their parents in the sense of abuse or corporal punishment , especially in the expression “victim of parental violence” in studies on the extent and effects of domestic violence .
history
In pre-state times, parental violence was natural due to the physical and mental superiority of the parents until the children grew up. In the early states of antiquity, such as ancient Greece and the Roman Empire , the decision-making power - the so-called patria potestas - continued to rest with the heads of families, while the state controlled all relationships outside the family. House and family remained autonomous and precisely because of this the basis of the community.
In the modern era , the legal concept of paternal power was developed. At the turn of the 20th century this was increasingly placed under the supervision of the state guardianship in order to safeguard the “ national interest in children ” ( child welfare idea). This initially developed into parental authority, which was then transformed into parental custody (Germany 1979, Switzerland) or custody (Austria). The conceptual paradigm shift goes back to the fact that the expression of “parental violence”, originally understood as “rule” in the sense of child protection, had changed to a misunderstood “parental coercion”, which the BGH pointed out in a 1976 decision. As a result, the term "parental care" was incorporated into law in 1979, replacing the term.
In the second half of the 20th century, the power of decision shifted directly to the state, whereby the youth law was created. The parents were denied the priority exercise of the power of order within the family and instead they were given responsibility for their children in connection with a parental responsibility for bringing up children . Derived from Article 6, Paragraph 2 of the Basic Law , the care and upbringing of children and the natural right of parents are subject to special constitutional protection. In this respect, parental rights are designed as a right to defend themselves against state interference in their right of upbringing. Since then, the state has fundamentally claimed the overriding regulatory power within the family as well.
| Change of legal terms of guardianship | |
|---|---|
| Modern times | Paternal violence |
| Late 19th / early 20th century | Parental authority |
| End of the 20th century | Parental care / child welfare |
Formation of terms in national legislation
In the Federal Republic of Germany , the term parental authority was replaced by “ parental custody ” in the BGB with effect from January 1, 1980 in the context of the custody reform (the law on the new regulation of the law of parental custody of July 24, 1979) . Even before the law was changed, German courts increasingly emphasized the obligation of parental rights and preferred the concept of parental responsibility . An earlier draft law had already provided for the term parental authority to be replaced by parental custody . The change in the name is explained by the fact that the legislature no longer saw parental rights as a right to rule over the child, but as a serving right.
In family law of the GDR , which was regulated in the Family Code (FGB) from 1966 to 1990 , the concept of parental authority was replaced by the concept of the right to bring up children . (See upbringing instead of parental control )
In Switzerland , the term was replaced by parental custody with effect from January 1, 2000 .
In Austrian family law, parental responsibility for a child is referred to as custody .
In Luxembourg , the term “parental authority” is more common than “parental authority”.
In South Tyrol the term “parental authority” is also still widespread as a common term for the summary of parental duties and rights .
Individual evidence
- ↑ BGHZ 66, 337.
- ↑ BT-Drs. 8/2788, p. 36; see also FamRZ 78, 473.
- ↑ a b Otto Palandt : Civil Code . CH Beck, 73rd edition, Munich 2014, ISBN 978-3-406-64400-9 , Einf v § 1625 Rnr. 1-4.
- ↑ fundamental to youth law, see Thilo Ramm: Jugendrecht. A textbook. , Munich, CH Beck, 1990, ISBN 340634447X .
- ↑ BVerfGE 4, 52; 7, 320.
- ^ Legal problem family - IV. Legalization of the family. P. 28 ff. By Karl Albrecht Schachtschneider , Nuremberg ( PDF; 240 kB ( Memento of the original from March 25, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. )
- ↑ Federal Law Gazette 1979 I No. 42
- ↑ a b When the daughter has a boyfriend . In: Die Zeit , No. 48/1976
- ↑ Rosemarie Nave-Herz (ed.): Change and continuity of the family in the Federal Republic of Germany . Enke-Verlag, 1988, ISBN 3-432-96691-1 , p. 24
- ↑ Parental Care. In: Dictionary of Social Policy. Retrieved May 24, 2009 .
- ↑ Parental responsibility - Luxembourg at: European Judicial Network (with links to discuss the topic of parental custody in individual EU countries)
- ↑ On terminology work in the area of “Language and Law”: Method and status of the work. (No longer available online.) Archived from the original on February 9, 2010 ; Retrieved May 24, 2009 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
