국내 및 국제 입양법제의 변화 및 검토

Abstract

On 18 July 2023, the existing Special Adoption Act, which delineates the prerequisites and processes for the adoption of children in need of protection, underwent a comprehensive revision. The legislation was renamed the Domestic Adoption Act, and matters pertaining to international adoption were separated into a newly established International Adoption Act. These legislative changes are part of the preparation for the ratification of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which has experienced delays. The new laws serve as implementing legislation for the Convention. It is anticipated that these legislative amendments will become fully effective on 19 July 2025. They are of considerable significance in that they establish an adoption system in which the state and local governments assume responsibility for all aspects of a child’s adoption. This establishes a foundation for public accountability in adoption and represents a pivotal step towards the realization of a child-centered adoption system that prioritizes the best interests of the child. In order to establish an adoption system that prioritizes the welfare of the child in accordance with the domestic and international adoption laws that are scheduled to come into force in July 2025, it is essential to undertake a comprehensive review of the existing framework and implement the necessary amendments. First, local governments must ensure that they have both the commitment and the requisite expertise to properly fulfill their child protection duties, which include assessing a child’s eligibility for adoption. This must be done in accordance with the guidance and supervision of the Ministry of Health and Welfare to ensure consistent implementation without regional disparities. Second, to prevent delays caused by procedural redundancies in the adoption process and to better serve the child's welfare, it is essential that a clear role division is established between the Ministry of Health and Welfare as the central authority and the courts overseeing adoption approval. Furthermore, a robust system of cooperation between the two entities must also be established. Third, the process preceding the finalization of the adoption must be conducted with the utmost caution. It would be prudent for family courts to make use of the recently introduced Provisional Parenting Decision System prior to granting formal approval for the adoption process to proceed. Fourth, the application of the International Adoption Act, based on habitual residence, requires close examination. This encompasses the examination of instances where the Act’s implementation might be unwarrantedly excluded or where individuals might evade its intended scope of coverage. Fifth, it is imperative to establish clear guidelines for the actions of Korea’s central authority in cases where adoptees fail to acquire nationality within the stipulated time frame under the International Adoption Act or face prolonged delays in doing so. Sixth, although it is appropriate to delegate certain tasks to accredited adoption organizations with the relevant specialized expertise, the scope of such delegation must be carefully limited in order to avoid undermining the Convention’s intent. It is essential that the roles and responsibilities of adoption agencies are clearly defined and constrained under the strict oversight of the Ministry of Health and Welfare.