본문 바로가기
KERD
논문KCI 등재

헤이그아동탈취협약과 유럽연합의 입법적 대응 —브뤼셀 II bis 규칙․로마 수정안을 소재로—

The Hague International Child Abduction Convention and the EU legislations —Brussels II bis and Rome III Proposal—

0

조회

0

다운로드

22

인용

0

참고문헌

키워드

주제분류법학

초록

The Hague International Child Abduction Convention, adopted in 1980 at the Fourteenth Session of the Hague Conference, is now in force in 84 countries, including the United States, its immediate neighbors of Mexico and Canada and most European nations. Korea has to decided to sign the Convention in this year. The Convention offers the opportunity for the international community both to deter and to remedy the wrongful taking of children across transnational boundaries. My focus in this article is to provide a brief overview of the structure of the Convention, to highlight a number of issues that have surfaced in the interpretation of the Convention in the courts, both in the United States and abroad, and to offer some observations about the use of the Convention. Perhaps the most striking feature of the Hague Convention is its “procedural” and “jurisdictional” focus. The objective is to protect children from wrongful international removals or retentions from their lawful custodians by requiring that children be returned to their country of habitual residence for resolution of any custody dispute. The Convention remedy is simple: The child is ordered returned, and any dispute over custody is litigated at the place of habitual residence. The Convention does not offer uniform international standards for determining custody rights, nor does it provide for enforcement of custody decrees rendered by another foreign state. Notwithstanding the reference to “Abduction” in the title to the Convention, the Convention applies more generally to children who have been taken to another country in violation of another's custody rights or have been wrongfully retained in violation of such rights. The premise of the Convention is that the country in which the child is “habitually resident” should be the decision maker in any custody dispute. The State of habitual residence has the most significant interest in resolving the dispute and will usually be best situated with information to determine the ultimate merits of any custody controversy. In addition, parents will be deterred from unilaterally taking or removing children from their habitual residences. To that end, countries adhering to the Convention agree to return children to have all issues of custody decided in the jurisdiction where the child was habitually resident.

Abstract

The Hague International Child Abduction Convention, adopted in 1980 at the Fourteenth Session of the Hague Conference, is now in force in 84 countries, including the United States, its immediate neighbors of Mexico and Canada and most European nations. Korea has to decided to sign the Convention in this year. The Convention offers the opportunity for the international community both to deter and to remedy the wrongful taking of children across transnational boundaries. My focus in this article is to provide a brief overview of the structure of the Convention, to highlight a number of issues that have surfaced in the interpretation of the Convention in the courts, both in the United States and abroad, and to offer some observations about the use of the Convention.

참고문헌 (25)

  1. 김석호, "외국 판결을 승인.집행하는 논거", 법학연구, (23), pp.275~304 (2006), 한국법학회
  2. 석광현, "개정루가노협약에 따른 계약사건의 국제재판관할", 서울대학교 법학, 49(4), pp.413~454 (2008), 법학연구소
  3. 석광현, "민사 및 상사사건의 재판관할과 재판의 집행에 관한 유럽공동체 협약(일명 “브뤼 셀협약”)", 국제사법과 국제소송, 2 (2002), 박영사
  4. 석광현, "헤이그국제사법회의 「민사 및 상사사건의 국제재판관할과 외국판결에 관한 협약」 예비초안", 국제사법과 국제소송, 2 (2002), 박영사
  5. 석광현, "국제사법해설" (2003), 지산
  6. 홍기문, "민사소송법" (2005), 대명출판사
  7. 이병화, "헤이그 國際兒童奪取協約의 國內的 履行의 可能性에 관한 硏究", 저스티스, (79), pp.149~172 (2004), 한국법학원
  8. 국제아동탈취의 민사적 측면에 관한 헤이그협약 연구, "이병화", 법무부, ~ (2009)
  9. 이영섭, "주해민사소송법", 한국사법행정학회
  10. 정규상, "루가노조약에 있어서 재판관할", 성균관법학, (9) (1998)
  11. 홍기문, "민사소송법" (2005), 대명출판사
  12. Boele-Woelki, K, "Brussels II bis: Its impact and Application in the Member States", European Family Law Series (2007), European Family Law Series
  13. Boele-Woelki, "Principles of European Family Law Regarding Divorce and Maintenance between Former Spouse" (2004), Anwerp-Oxford
  14. Boele-Woelki, "Principles of European Family Law Regarding Parental Responsibility" (2007), Anwerp-Oxford
  15. Borrás, "Protection of Minors and Child Abduction under Hague Conventions and the Brussels II bis Regulation in Japanese and European Private International Law" (2008), Mohr Siebeck Gmbh & Co
  16. Ingeborg, "Model Family Code; From Global Perspective" (2006), Antwerpen-Oxford
  17. Jänterä-Jareborg, "Jurisdiction and Applicable Law in Cross-Border Divorce Cases in Europe in Japanese and European Private International Law in Comparative Perspective" (2008), Mohr Siebeck Gmbh & Co
  18. McEleavy, P, "The Communitarizaiton of Divorce Rules; What Impact for English and Scottish Law", International and Comparative Law Quartely (2004)
  19. Nygh, Peter, "The New Hague Child Protection Convention, International Journal of Law", Policy and the Family, 11(3) (1997)
  20. "Unification and co-operation in the field of International family law: a perspective from The Hague,” Symposium of Forty Years of International Law, held in the T.M.C. Asser Institut"[URL]
  21. 岡野正敬, "国境を越える奪取をめぐる問題の現状と課題", 国際法外交雑誌, 109(1) (2010)
  22. 溜池良夫, "国際私法講義" (1999), 有斐閣
  23. 神前禎, "早川吉尚=元永和彦", 国際私法, 2 (2006), 有斐閣
  24. 織田有基子, "子の奪取に関するハーグ条約の実務の運用と日本{における批准の可能\性", 国際, 95(2) (1995)
  25. 横山潤, "国際的な子の奪取に関するハーグ条約」一橋大学年報", 法学研究, (34) (2000)

이 간행물의 다른 논문 (9건)