미성년자 입양 시 부모의 동의에 관한 민법 제870조 규정의 이해

Abstract

In the 2010s, there were frequent revisions of Korean Civil Code(KCC). Among them, the amendment to the adopted children section in 2012 has transformed the paradigm of adoption into "adoption for the sake of children" and stipulated the state's intervention to guarantee the welfare of the adopted children. Meanwhile, the amendment of the parental authority section in 2014 had the purpose of protecting children from abuse of parental authority and child abuse. The amendments to the Civil Code in 2012 and in 2014 were made for different purposes, so they were not carefully considered with the other side in mind during each revision. As a result, it was questioned how the provisions of the parental authority section revised in 2014 would be applied in the interpretation and application of the provisions of the revised adopted children section of 2012. The problematic regulation is Art. 870 KCC. Art. 870 KCC stipulates that the adoption of minors requires the consent of their parents for the adoption, and it is exceptionally not required, if the parents are sentenced for loss of parental authority. If so, it will be questioned what will happen if the temporary suspension of parental authority may be adjudicated or the partial restriction of parental authority may be sentenced, both made by revision of the KCC in 2014. In this regard, the amended KCC of 2014 sets out Art. 925-3 KCC. Art. 925-3 KCC stipulates that the adjudication on the loss or temporary suspension of parental authority, on partial restriction of parental authority or on the loss of the rights to represent and to manager property does not change any of the rights and obligations of parents to their child. But this regulation was aimed at preventing parents from refusing to fulfill their obligations in response to public intervention in the exercise of parental authority, and was made in mind with the case, in which the parents refuse consent for the treatment, even though specific medical treatment and procedures were absolutely necessary for the treatment of the child. Therefore, it is necessary to take a specific examination as to whether or not the regulation is also appropriate as a link to adoption, especially if the parents want to actively exercise their authority based on their status as parents. As a result of the examination, it was concluded that parental consent is not required for the adoption of minors, if the parent's location is not known or in similar situations, if the parent is adjudicated on loss or temporary suspension of parental authority, and if the parent is adjudicated on partial restriction of parental authority, while parental consent for minors adoption is required, if the parent is adjudicated on loss of rights to represent and manage property.