국제입양에서 제기되는 國際私法의 제 문제

Private International Law Issues relating to International Adoption with an Emphasis on the Special Adoption Act and the Hague Adoption Convention

The Republic of Korea (“Korea”) should now accede to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Convention”). In the past Korea used to send Korean children to foreign countries with approval for overseas emigration of the Minister of Health and Welfare and let the children be subject to adoption decisions before foreign courts. In such case the formation of adoptive parent-children relationship and the dissolution of natural parent-children relationship in Korea take place by way of the mechanism of recognition of foreign adoption decision in Korea. Unfortunately, in Korea this mechanism has not drawn much attention until recently. That explains why the conditions under which a foreign adoption decision can be recognized in Korea have not been entirely clarified. However, under the recently revised Special Adoption Act which has taken effect on August 5, 2012 Korean children could now be sent overseas for adoption only after receiving an adoption decision from a Korean court. Therefore, from now on recognition of a Korean adoption decision in a foreign country, i.e., receiving state, will become an issue, while recognition of foreign adoption decision in Korea will not be an issue any more. In this article, the author reviews the private international law issues and the implications arising from international adoption under the revised Special Adoption Act. The Convention aims to ensure that intercountry adoptions are made in the best interests of the child and with respect for his fundamental rights, and to ensure that intercountry adoptions made in a contracting state in accordance with the Convention are recognized in the other contracting states. More concretely, the author deals with the private international law issues arising from international adoptions (Chapter Ⅱ), the adoption procedures under the old Special Adoption Act and its main features (Chapter Ⅲ), the adoption procedures under the revised Special Adoption Act and its main features (Chapter Ⅳ), brief descriptions of the Convention (Chapter Ⅴ), the measures which need to be taken by Korea at the time of Korea’s accession to the Convention (Chapter Ⅵ) and the procedural changes of international adoption to be caused by Korea’s accession to the Convention in the future (Chapter Ⅶ).