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

Abstract

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.