개정 「민법」상 입양과 「입양특례법」상 입양 —체계정합성의 관점에서—

Abstract

Some articles concerning adoption in Korean Civil Law and the Special Adoption Act have been recently revised. But unfortunately those two statutes become in consistent because of the difference of the primary department and the gap of time for revision. For example, those who want to adopt a child under the application of the Special Adoption Act can also choose an adoption or a full adoption under the Civil Law, and thereby they can escape from rigorous requirement of the Special Adoption Act. Furthermore, on the one hand an adoption under the Civil Law becomes effective by an adoption report under the Act on the Registration, etc. of Family Relationship, on the other hand an adoption under the Special Adoption Act becomes effective at the same time with the final and conclusive adjudication which has admitted an adoption claim. Consequently children who has been adopted by foreign parents cannot be protected properly when adoptive parents reject to take over the child after the adoption adjudication. It is not clear either, whether an adoption without adjudication under the Special Adoption Act is null and void, or not, because the new Special Adoption Act just provides that the articles concerning adoption in Korean Civil Law shall apply mutatis mutandis without specifying whether those articles are related to a normal adoption or a full adoption. Besides, a provision about the consent exemption in case of missing of a legal representative is left out in full adotion, and a provision about the consent exemption in case of unjustifiable rejection in adoption under the Special Adoption Act, either. The revised Civil Law and the Special Adoption Act surely has opened a new horizon of the area of adoption, but we cannot deny that they have a lot to be improved.