헤이그입양협약 비준을 위한 2018년 “국제입양에 관한 법률안”에 대한 검토

Abstract

In order to ratify the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Convention”) concluded on May 29, 1993 under the auspices of the Hague Conference on Private International Law, some Members of the National Assembly of Korea introduced on December 5, 2018 the International Adoption Bill (“Bill”) and the Act on Special Cases Concerning Adoption (“Special Adoption Act”) (Amendment) Bill. The author welcomes such proposals since they are steps necessary for Korea’s ratification of the Convention. Hoping to contribute to the International Adoption Act (“IAA”), the author makes some comments on the Bill. First, since the IAA is to be an act implementing the Convention, the Bill should serve the purpose of an implementing act, and in particular not be inconsistent with the Convention. For example, while the Convention (Article 27) provides for conversion of an adoption granted in another Contracting State, the Bill does not accurately reflect this. In addition, the Bill only distinguishes inbound adoption from outbound adoption, but does not distinguish adoptions to which the Convention applies from those to which the Convention does not apply. Since this causes confusion and is a mistake regarding the effect of adoption, the IAA should distinguish them. Second, while the current Special Adoption Act deals with ‘adoption of children in need of protection in Korea’ and ‘outbound adoption of children in need of protection’, the IAA, for it purports to apply to children in general, whether in need of protection or not, and regulate both inbound and outbound adoptions, touches upon the Act on Private International Law (“KPILA”), lex generalis applying to legal relationships with foreign element. Accordingly, the Bill should not conflict with rules for the choice of law, i.e., private international law in the narrowest sense, or legal principles of recognition of foreign judgments, that is including both recognition of foreign judgments in Korea and that of Korean judgments elsewhere. Furthermore, the Bill must comprehend in relationship with other Contracting States the consequences on such rules Korea’s ratification of the Convention may entail. However, the Bill reveals various problems due to the lack of awareness of these legal circumstances. The author thus urges that the National Assembly should further consider amendments to the Bill in view of the author’s comments herein. The passage of the discussion is as follows: first, private international law doctrines applicable to international adoption in general (Chapter Ⅱ); second, changes to be brought by Korea’s ratification of the Convention (Chapter Ⅲ); third, missions the IAA should accomplish (Chapter Ⅳ); fourth, overview and overall assessment of the Bill (Chapter Ⅴ); fifth, review of individual provisions of the Bill (Chapter Ⅵ); and sixth, concluding remarks (Chapter Ⅶ). However, since Chapters Ⅱ to Ⅴ have already been dealt with in an article by the author, they are briefly dealt with and the focus will be on Chapter Ⅵ. In Chapter VI, the author also suggests amendments to the wording of some provisions.