보호감독자에 의한 미성년자약취죄와 국외이송약취죄 - 베트남 여성의 자녀 약취 사건 -

Abstract

Today we live in a global village owing to the development of transportation and communication and almost one of ten couples in Korea are married with a different nationality every year. In addition, divorce cases between international marriage couples are increasing rapidly. As families form and dissolve across international borders, domestic family law does not adequately address the needs of parents and children with ties to multiple legal systems. The international parental child abduction exemplifies these complex issues. When the child has been taken or kept overseas by one of the parents, that child may suffer from linguistic, social and cultural barriers and the left-behind parent may have difficulties in finding or recovering a child. Accordingly, it is necessary that the international parental child abduction should be handled differently considering the differences with child kidnapping within the country. The international society(Hague Conference on Private International Law) adopted the “Convention on the Civil Aspects of International Child Abduction(Hague Child Abduction Convention)” in 1980 and South Korea acceded to the Hague Child Abduction Convention on December 13, 2012, whereby South Korea became the 89th contracting nation to the convention. However, considerable number of marriage immigrants in Korea came from countries such as China, Vietnam and the Philippines and these countries are not party to the Hague Child Abduction Convention. In this respect, the effectiveness of the international civil remedy through the Hague Child Abduction Convention is being questioned. The Supreme Court of Korea declared the defendant(Vietnamese female marriage immigrant) not guilty on June 30, 2013. The defendant took a 13 month old baby to her native Vietnam without husband’s consent and she was charged with kidnapping and transporting kidnapped person to foreign country. In this ruling, there was a fierce theoretical battle between Justices and 5 of 13 Justices wrote a dissenting opinion. As the divorce rate of multi-cultural family is raising, the number of korean parents who suffer from problems related to international child kidnapping by foreign spouses is on the increase. Under these circumstances, this Supreme Court judgement has a significant meaning. This paper reviews this Supreme Court judgement mainly with the established requirements of kidnapping minor and transporting abductee to foreign country.