아동인도집행 실무의 문제점과 현행 법제의 개선방향

Abstract

Enforcement of claim for delivery of Child had not received significant attention until it gained prominence as an international case in Suwon District Court Civil Enforcement Officer Office cases 2021Bon5153, 2022Bon3042, 4840, and 2023Bon206. An American father, who had won judgments in both U.S. and Korean courts, found himself unable to enforce the judgment due to the so-called ‘poison pill clause’ in Special Provisions 82-1, which states that enforcement is impossible if a competent infant refuses. This situation escalated into a diplomatic issue between South Korea and the United States. The Supreme Court ultimately resolved the case by enacting Established rule 2024-1. However, the lack of a legal basis for exercising coercive power means that, despite the enactment and amendment of Established rules, practice remains passive toward enforcement, as pointed out in the main text. This is a critical legislative deficiency. Explicit provisions regarding the exercise of coercive power by enforcement officers must be added to Article 5, the general provisions section of the Civil Execution Act. Furthermore, considering the lack of resolution methods when there is a conflict of intent between the family court and the enforcement officer, the enforcement agency, the structure should be reorganized. The family court, as the enforcement agency and the judicial body best acquainted with the case, should direct the execution, while the enforcement officer, as the implementing agency, should bear responsibility for the entire execution process. More fundamentally, regarding the statutory principle governing essential matters of compulsory execution (in relation to the principle of rule of law in administration), it is deemed necessary to stipulate this in law rather than in established rules. This raises the need for legislative action; however, a comprehensive revision bill for the Family Litigation Act was submitted to the National Assembly in 2018 but lapsed automatically. However, going beyond the content of that amendment bill, we should adopt the German Family Proceedings Act and, in particular, establish provisions concerning direct enforcement. This is justified from the perspective of systemic legitimacy. The basis for the legitimacy of direct enforcement must be found in the inherent judicial authority of the family court to issue judgments on delivery of child. The German family court's judgment orders also need to be adopted as a model by our family courts. Efforts to align the nature of the right to request delivery of child with the method of enforcement should be abandoned. Instead, the system should be designed to maximize the child's welfare. This is seen as the most rational solution under the current bailiff system. Therefore, the participation of Child Counselor is highly welcome. Furthermore, the term “infant” in the Family Court Act should be amended to include “minor children” to prevent legal gaps. This is because issues arise in international enforcement of claim for delivery of child for children under 16 who are not infants. It is also highly necessary to explicitly stipulate the termination point of enforcement of delivery of child to determine the timing of the enforcement officer's involvement.