국제가사사건을 다루는 법률가들께 드리는 고언(苦言)

Candid Advice to Korean Lawyers dealing with International Family Cases

In recent years, the number of family cases and succession cases pending before Korean courts (the “family cases”) has been continuingly increasing. At the same time, the number of international family cases involving a foreign element is also increasing. Against this background, Korea has acceded to the Child Abduction Convention and is making efforts to ratify the Inter-country Child Adoption Convention. Korean lawyers dealing with international family cases should have competent understanding of private international law. However, in reality, in many international family cases Korean judges have dealt with such cases as though they were purely domestic ones. In this article, the author has selected seven cases or situations, and for each case or situation, the author explains the actual treatment, points out mistakes committed by Korean lawyers and finally offers correct solutions. More concretely, the author deals with the following cases or situations: law applicable to divorce, damages for suffering, appointment as a custodian for children, and granting of right of visitation claimed by a Korean as against a foreigner (Chapter Ⅱ.); various issues under the so-called Kopino cases (Chapter Ⅲ.); law applicable to overseas adoption of Korean children in need of protection (Chapter Ⅳ.); acquisition of nationality by Korean children adopted overseas (Chapter Ⅴ.); law applicable to family name (Chapter Ⅵ.); law applicable to the form of testamentary dispositions (Chapter Ⅶ.); and recognition of a court decision made by the State of Oregon regarding appointment of custodian for children and the requirement of reciprocity (Chapter Ⅷ.). Korean courts have shown far less interest in private international law issues when dealing with international family law matters, compared with when they deal with international cases involving property law. The author would like to make the below suggestions to improve the situation. First, each and every Korean judge dealing with international family law matters should realize the importance of private international law implications. We should consider establishing “Special Panels in Charge of International Cases” in the Seoul Family Court and other family courts dealing with many international family cases. The family courts may also consider holding regular joint seminars with the Korean Private International Law Association. Secondly, more fundamentally, the education of private international law, in particular international family law, should be strengthened. Even though the international business transactions law (including private international law) is currently favored by the majority of law school students as the optional subject at the bar examination, education of private international law at law schools is not properly conducted. This is mainly because many law school students just select the subject without even taking the course at the law schools. In order to improve the current situation, major law schools should recruit full-time professors who can teach private international law. In addition, the author would like to emphasize that law school professors in charge of private law subjects should at least advise their students of the importance of the private international law where the case involves a foreign element.