친생자관계의 성립 및 효력의 준거법에 관한 입법론

Abstract

This article aims to provide how to revise the choice-of-law rules in the Korean private international law act (hereinafter “KPILA”) for determining the law governing the establishment and effects of (biological) parent-child relationship. The main suggestions for the amendments proposed by the author are as follows: Considering that the substantive laws of most countries regarding parent-child relationships during marriage and outside marriage differ only in the requirements for the establishment thereof and have the almost same effects therein, there is no need to distinguish the law governing the establishment of parent-child relationship during marriage (connecting factors: the father or the mother’s law of nationality at the time of the child’s birth) and the same outside marriage (connecting factors: (i) for mother-child relationship, the law of the mother’s nationality at the time of the child’s birth; (ii) for father-child relationship, the law of the mother’s or the father’s nationality at the time of the child’s birth or the law of the child’s habitual residence at present; and (iii) for recognition, the law of the recognizer’s nationality at the time of recognition, in addition to the above mentioned (i) or (ii)). If so, it is necessary to provide alternative connection by combining all the connecting factors for determining the law governing the establishment of parent-child relationship during marriage and outside marriage, and add the law of the child’s habitual residence at the time of the child’s birth, which was excluded in the KPILA of 2001. It is desirable to alternatively connect the rebuttal of parent-child relationship to the same connecting factors as the presumption of parent-child relationship. Even if the law governing the establishment of parent-child relationship is uniformly stipulated, it is necessary to distinguish the recognition and provide the law of the child’s nationality at the time of recognition as an additional connecting factor. The KPILA stipulates that if the father dies before the birth of a child, the law of the father’s nationality at the time of the father’s death shall be regarded as his law of nationality in relation to the establishment of paternity during marriage. It is desirable to stipulate more broadly that in case of dissolution (including death of father) or annulment of marriage, the law of the father’s nationality at the time of dissolution or annulment of marriage shall be regarded as his law of nationality. Meanwhile, the effects of parent-child relationship are governed by the law of the child’s habitual residence in principle, but by the law of the child’s nationality exceptionally, if the father, the mother and the child have the same law of nationality. In light of the policy towards Koreans habitually residing in foreign countries and foreigners habitually residing in Korea, the exception needs to be amended so that parents and children living apart in different countries can only confirm their filiational ties. In addition, it is necessary to establish a general rule that a person’s name, as a matter of personal rights, is governed by the law of the person’s nationality so that the child’s last name is also governed by the law of the child’s nationality. In order to accept the attitude of the Hague Child Protection Convention, the law governing the effects of parent-child relationship shall not be subject to the remission (renvoi). It is also desirable to clearly state that the so-called transaction protection provision in Article 29(1) of the KPILA can be invoked for the transactions performed by ex lege representative according to its authority, by way of specifying that it is excluded from the “acts under the kinship law” under Article 29(2) of the KPILA.