한국 입양법의 문제점

The Problems in the Korean Adoption Laws

This paper focuses on the problems in the Korean adoption laws, specifically the problems inherent in the adoption based on the acceptance by legal representatives of child(=child's custodial parents) and the civil code’s indifference to the unmarried fathers’ rights. The former Civil Code (the one existing prior to the amendments by the Act No. 4199 on January 13, 1990), in section 869, provided that “if the adoptee is under the age of 15, legal representatives, or the guardian in place of the parents in the case of no parents, shall accept the offer of adoption.” After the amendments, this section replaces guardians with legal representatives with custody as the person with acceptance power. As a result of this amendment, when only one parent is appointed as the holder of custodial rights due to a divorce or a birth out of wedlock, the other parent who is not awarded the custodial rights can't have any voice in the adoption of his or her children. To the contrary, section 870(1) of the Civil Code provides that “an adoptee shall obtain the parents’ consent…,” and this section has not been amended. Therefore, if the adoptee is over 15, he or she shall obtain consent from the both parents, even when only one parent has been awarded custody due to a divorce or a birth out of wedlock. Section 869 of the Civil Code, which authorizes the adoption of an adoptee under 15 only with the legal representatives’ acceptance results in an involuntary deprivation of the non-custodial parents’ potential custodial rights, has a potential to violate Article 10 of the Constitution, which guarantees the human dignity and value, and the right to pursue happiness, Article 36(2) of the Constitution that prohibits improper invasion of marriage and family lives. In order to trace the history of the U.S.A.’s protection of unmarried fathers, this paper reviews the Supreme Court cases of Stanley, Quillion, Caban, and Lehr. In the U.S.A., when a unmarried father demonstrates his commitment as a father by having participated in the raising of the child[ren], he can enjoy several rights equivalent to those of the mother, a right to a notice and opportunity to be heard and a right to consent (or a right to veto). Even for those father who have not formed a substantial relationship with the child, due to the biological link, they still have an opportunity interest so that they can develop a father-child relationship. They acquire this opportunity interest from their biological link to develop a constitutionally protected relationship. In order to protect this interest, a system called putative father registry has been established, and those father who have registered in time are give notice of adoption. A complete agreement to what Justice White stated in Lehr in his dissenting opinion, “the biological link in itself is a relationship that creates a protected interest,” may not be expected. However, considering the Stanley case and the other relevant cases, there is a need for the establishment of a institutional system through which biological fathers’ voice can be heard. As a tentative measure, they should be given the rights to consent and to a notice and opportunity to be heard through interpretation of existing laws, depending on whether they have developed a substantial and real father-children relationship. In any event, there shall be more research on the issues of biological fathers, i.e., unmarried fathers, who have not established legal fatherhoods through acknowledgments or other means. Once the new paradigm of the U.S.A. on unmarried fathers is applied to the Korean adoption laws, it is just a matter of time that there emerge constitutional problems regarding the violation of human dignity and value, the right to pursue happiness, and due process and equal protection.