國際的 扶養義務에 관한 硏究

Abstract

With latest rapid increase of international marriage and divorce cases today, Korea now faces gradually increasing number of claims for financial maintenance recovery from and to overseas, and it is forecast that international maintenance will be ever-complicated and ever-diversified problem in near future. Accordingly, this study discusses and addresses overall considerations about international maintenance obligations. First, as a part of review about the maintenance obligations from the perspective of comparative law, this study deals with major relevant domestic laws, jurisprudential theories and judicial precedents in UK, Japan and Korea. In UK, this study reviews Child Support Act(1991) and the Child Support, Pensions and Social Security Act(CSPSSA, 2000). In Korea and Japan, the living maintenance of people in need relies broadly on two major systems, i.e. assistance from relatives and governmental assistance. Particularly, current jurisprudential theories take qualitative categorization of financial assistance among relatives into two different types of maintenance obligations, i.e. essential(primary) and exceptional(secondary) maintenance obligation. Next, this study addresses historical backgrounds, significance and major considerations of UN Convention on the Recovery Abroad of Maintenance(1956). The purpose of this UN Convention is to establish a collaborative system between transmitting and receiving agency in order to facilitate claims of maintenance creditor for financial maintenance recovery to maintenance debtor residing in another contracting state. Korea is not yet a member of this Convention, and has not yet built up its independent maintenance recovery system, even though it is a country concerned on UN Convention on the Rights of the Child(1989). And this study makes an overall review on Hague Convention on the Law Applicable to Maintenance Obligations towards Children(1956) and the Hague Convention on the Law Applicable to Maintenance Obligations(1973). These Conventions adopt phased application of governing law in the priority of the law of the habitual residence of the maintenance creditor, the law of the creditor and debtor's common nationality and the law of the forum, in terms of governing law on maintenance obligations, ultimately for the benefit of realizing the idea of favor creditoris. In addition, the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance(2007) proclaims the promotion of cooperations among contracting states in the interest of international recovery for child support and other forms of family maintenance. Finally, this study compares and analyzes practical legislative cases on international maintenance obligations, particularly focusing on those cases in German, Japanese and Korean. Germany ratified UN Convention on the Recovery Abroad of Maintenance(1956), and enacted Auslandsunterhaltsgesetz(AUG). Moreover, Germany enforced Hague Convention on the Law Applicable to Maintenance Obligations(1973) and comprehensively stipulated further descriptions of said Convention in the Article 18, Einführungsgesetz zum Bürgerlichen Gesetzbuche(EGBGB). Japan also effectuated the said Hague Maintenance Conventions(1956 and 1973) and has enforced corresponding special act customized for its domestic conditions. In Korea, the Article 46 of revised Private International Law accepts major considerations of the Hague Convention on the Law Applicable to Maintenance Obligations(1973) in order to protect maintenance creditor, but Korea has not yet joined the said Convention. For judgment on whether to join these Conventions in near future, it is advisable to conduct formulated studies on this issue in advance. Based on findings from the studies, it is required to seek for effective ways to resolve maintenance problems through extensive collaborations among a variety of Conventions concerned in international maintenance obligations.