국제친권⋅후견법의 동향과 우리의 입법과제

Abstract

In recent times, the number of foreign children who reside in Korea is increasing with the increase of the number of migrant foreign women who come to Korea for marriage and the number of Korean children who reside in foreign countries is also increasing. In the past, protection of children in the international context did not draw much attention in Korean society. However, recent cases of child abuse, in particular the Ulsan step mother case has offered opportunities to Korean society to pay more attention to the protection of children. Accordingly, in the future the protection of children in the international context will be the focus of Korean society. In this article, the author reviews the current provisions on parental responsibility and guardianship of the Private International Law Act of Korea (“PILA”)(Chapter Ⅱ.), international trend as reflected in the “Convention on Jurisdiction, Applicable Law, Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children” (“Convention”) of 1966 of the Hague Conference on Private International Law (Chapter Ⅲ.) and the direction of Korea’s future legislation (Chapter Ⅳ.). The “international parental authority and guardianship law” in its broad sense referred to in this article includes jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental authority and guardianship. In cases where protection of children is sought, the questions on procedural matters such as jurisdiction and recognition and enforcement of measures for the protection of children arise. The Convention also deals with the measures for the protection of children effected by administrative authorities in addition to those effected by courts, and therefore part of the issues could fall outside of civil matters. Compared to the Convention, the current international parental authority and guardianship law of the PILA leaves much to be desired. As to the international jurisdiction, we could draw several rules from the Family Litigation Act and the Private International Law Act in conjunction with the PILA, which are not clear enough. As to the recognition and enforcement of foreign judgments, the scholars tend to apply the provisions of the Civil Procedure Act and the Civil Execution Act by analogy; however, there are still disputes. In addition, there are no provisions at all concerning the international assistance. As to the governing law, the position of the PILA is not adequate to efficiently protect the interests of children because the law applicable to parental authority and the law applicable to guardianship of children could be different because the relevant provisions of the PILA set forth different connecting factors for parental authority on the one hand and guardianship of children on the other. Even though the content of the Convention is already known to Korea, the similarities and differences between the Convention and PILA and the practical advantages to be brought by Korea’s accession to the Convention are not fully discussed in Korea. Thus it is now time for us to try to accede to the Convention after conducting more thorough research thereon. Even if Korea accedes to the Convention, it would not be sufficient to protect children because the countries of those children in question are not parties to the Convention. Accordingly, it is necessary for Korea to take legislative measures including amendment of the PILA. The concrete direction of such amendment could be determined after we have completed in-depth research on the international parental authority and guardianship law.