다문화가족의 해체에 따른 아동 보호의 문제

Abstract

With the rapid increase in number of marriage migrant women and migrant workers flowing into Korea, we have now in effect entered into a multi-cultural society. As the number of multi-cultural families increases, the number of children of these families is also increasing. Accordingly, Korean society is more and more faced with various issues related with these children. According to Statistics Korea’s data, in 2010, the number of divorces of multi-cultural families accounted for 9.6% of the total number of divorces in Korea. According to Seoul Family Court, in May 2011, the proportion of divorce suits of multi-cultural families takes up more than 40% of the total of divorce suits filed at the Court over the last three years. Statistics Korea’s data shows that the number of children of divorced multi-cultural families was only 500 in 2004. However in 2010, the number reached around 1,500, which is more than a threefold increase. This, even, is only the number identified in official statistics. The number of children of illegal immigrants or foreign children who moves to Korea after their mother or father’s remarriage with a Korean national is likely to have been missed out in the official numbers. So, if we count this in, the number is much bigger than the officially identified. What is more, since more than 10,000 multi-cultural families are divorcing each year, it is expected that the number of children of these divorced families will continue to increase. In this paper, I will mainly touch upon what issues there are related with Korea’s Civil Code and Nationality Act when ensuring human rights and welfare of children of broken up multi-cultural families. Firstly, the issue of designation of person with parental rights and primary fosterer of children of divorced multi-cultural families often comes with hard case such as Chuncheon District Court ruling(2002. 11.15. 2002 De-Dan636 Ruling). In this case court gave custody of the child to a violent father instead of a mother illegally living in Korea who can be deported any day. However, if we consider the fact that she had to choose to escape with her two year-old baby from her violent husband of common law marriage, we cannot but question whether the court’s decision to designate the violent father to be the person with parental right and primary fosterer is reasonable and right for the child’s wellbeing. This case clearly shows the social issues of multi-cultural family breakdown and difficulties in protecting children of these families. Moreover, especially in many cases of divorced multi-cultural families that are poor, children are left out of social help. They may be left at a child-care center in Korea. They may live as an illegal immigrant in the home country of his or her migrant parent or may be put at a child-care center in that country out of reach and protection of the Korean consul in that country. We have no idea of the number of these children, those who are out of legal protection and system. We do not have any provisions or legal system that forces the divorced parents to carry out their obligation of child-rearing and to screen whether this is properly done. This is not only a task in addressing multi-cultural family issues, but also a fundamental task for protecting our children in average Korean divorces. Secondly, we should consider the visiting right of children of the divorced multi-cultural families. The visiting right guaranteed by the Korean Civil Code is not only a right of the parent but also that of the children. Article 9 of “Convention on the Rights of the Child”, which Korea adopted, stipulates that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.” The Korean Civil Code also revised its provision regarding visitation rights. Unlike in the past, now, the visitation right is not only a right of the parent but also a right of the child. As such, even in divorced cases of multi-cultural families, we should guarantee the children’s right to meet and contact their biological parent. The Nationality Act does not state visiting rights of a migrant mother who got divorced before naturalization and who is not designated as the main fosterer as a reason eligible for simplified naturalization. Therefore, on the part of the divorced migrant women, even if they are granted visiting rights, unless they have other reasons, it is difficult for these women to endlessly stay in Korea and exercise their visitation rights. To address such issues, we need practical measures such as extending visa expiration date for people who have visiting rights and it would be more ideal if we guarantee permanent resident status to any foreign spouses married to Koreans. Lastly, there are some legal issues regarding children of migrants who remarry Korean nationals. There are many remarriages in multi-cultural families. If a foreigner who remarries in Korea, he or she may bring children born between his or her ex-wife or ex-husband. Korea’s Nationality Act states that adopted adults that have maintained a domicile address for more than 3 years in Korea are eligible to apply for simplified naturalization (Article 6). Adopted children who were under age at the time of the adoption are eligible for special naturalization right after entry into Korea (Article 7). Hence, we can easily forecast that there will be many Korean nationals who adopt children of their foreign spouse. However, there are various legal issues such as adoption of the children by the Korean parent and dissolution of the adoption after a divorce. If the adoption is cancelled before the child obtains Korean nationality, he or she can no longer stay in Korea. The child has to leave his parent and go back to his or her country of nationality; otherwise he or she will become an illegal immigrant. If the divorce is due to reasons attributable to the Korean national, according to Article 6 of the Nationality Act, the marriage migrant can extend his or her stay in Korea and can also apply for the ‘simplified naturalization’. However, there is no legal ground to extend the stay in Korea for the foreign child whose adoption was cancelled. I have reviewed some legal issues that can arise related with children of broken up multi-cultural families. Being a child, alone, should be a sufficient reason for us to prioritize guaranteeing the human rights and welfare of children of multi-cultural families. If a multi-cultural family breaks up, it is the children who suffer most and it is the human rights and welfare of these children that are most affected and overlooked. The children of multi-cultural families are faced with many legal difficulties. It remains our challenge and task to put further efforts to provide better social and legal protection for these children so that their basic human rights and welfare can be guaranteed.