헤이그입양협약 비준을 위한 2016년 “국제입양에 관한 법률안”에 대한 검토

• 영문명: Review of the Bill of the International Adoption Act of 2016 prepared for Korea’s Ratification of the Hague Adoption Convention
• 발행기관: 한국가족법학회
• 저자명: 석광현(Suk Kwang Hyun)
• 간행물 정보: 『가족법연구』家族法硏究 第31卷 1號, 105~172쪽, 전체 68쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.03.31

영문 초록

The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, (“Convention”) adopted in 1993 under the auspices of the Hague Conference on Private International Law is a very important convention on international adoption. Although Korea has signed the Convention on May 24, 2013, it has not yet ratified the Convention, which is very shameful. As a means to ratify the Convention, some members of the National Assembly of Korea has submitted a bill of the International Adoption Act (“Bill” and “IAA”, respectively) and a bill amending the current Special Adoption Act. The author welcomes such actions since they are necessary steps needed for Korea’s ratification of the Convention. Hoping to contribute to writing a perfect legislation, the author would like to provide a few comments on the Bill. More concretely, the author discusses the issues in the following order: First, private international law doctrines applicable to international adoption in general, which include doctrines on international jurisdiction, applicable law and recognition and enforcement of foreign judgments (PartⅡ). Knowledge of these doctrines are indispensable in preparing the Bill, since they constitute the legal ‘Gegebenheit’ (circumstances) for legislation on international adoption. Second, the changes to be brought by Korea’s ratification of the Convention (PartⅢ). Third, the tasks which the IAA should achieve (PartⅣ). Fourth, the overview and the fundamental issues of the Bill (PartⅤ). Fifth, the review of individual provisions of the Bill (PartⅥ). Sixth, concluding remarks (PartⅦ). The current Special Adoption Act mainly deals with outbound adoption of Korean “Children in Need of Protection”. However, since the IAA purports to regulate inbound and outbound adoptions of children in general as well as Korean Children in Need of Protection, the area where it may be in touch with the Korean Private International Law Act (“KPILA”) is much broader. Accordingly, we should first understand the private international law doctrines on applicable law, the recognition of Korean judgments in foreign countries and the recognition of foreign judgments in Korea. In addition, we should understand clearly what kind of changes will be brought by Korea’s ratification of the Convention. Under Article 43 of the KPILA, adoption and its dissolution shall be governed by the adoptive parent’s national law at the time of the adoption. The current Special Adoption Act regulating outbound adoptions of the “Children in Need of Protection” may include, by way of exceptions to the general private international law rules, some so-called “internationally mandatory rules” designed to protect Korean children under Article 7 of the KPILA. However, such exceptions should be kept to a minimum. Unlike the Special Adoption Act, the IAA purports to regulate international adoption of children in general and therefore should not include a wide range of exceptions. Since the law applicable to international adoption may be very diverse, inserting detailed rules on the conditions and effect of adoptions in the IAA will inevitably cause conflicts with the KPILA, and thus, is not desirable. It appears that most of the errors and mistakes of the Bill are attributable to the drafters’ lack of knowledge of the private international law. We also need to review carefully the consistency between the Bill and the Convention. In sum, the author strongly urges that the National Assembly should substantially revise the Bill after carefully considering the author’s comments herein.

목차

Ⅰ. 머리말

Ⅱ. 국제입양에 적용되는 국제사법 법리

Ⅲ. 입양협약의 비준에 의하여 초래될 변화

Ⅳ. 국제입양법률이 달성해야 하는 과제

Ⅴ. 국제입양법률안의 개관과 기본적 문제점

Ⅵ. 국제입양법률안 조문의 개별적 검토

Ⅶ. 맺음말: 국제입양법률안의 대폭적 수정의 촉구

참고문헌

Abstract

부록

키워드

헤이그입양협약 입양재판의 승인 준거법 수령국 출신국 중앙당국 국제입양에 관한 법률안 Hague Adoption Convention recognition of adoption decree law applicable to adoption receiving state state of origin central authority draft of act on international adoption