국제입양에 관한 헤이그 협약에 비추어 본 국제입양 관련법의 개선방안

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption(Hague Adoption Convention) was adopted by the Hague Conference on Private International Law on 27 May 1993. The number of Contracting States is 81 as of November 2009. South Korea participated in the final diplomatic conference and signed the Convention. However, South Korea still does not ratify the Convention, even after signing it on 24 May 2013. The Convention is very important international instrument regarding ethical and legal standards for intercountry adoption, since many receiving states or states of origin already ratified or acceded to the Convention and the standards of the Convention are becoming international standards to protect the best interest of the adopted children. Today all the receiving States of Korean adopted children are contracting states of the Convention and they expect to protect the adopted children similar to the standard of the Convention. Even though South Korea regulates the intercounty adoption by the Special Act for the Promotion and Procedure of Adoption, the Act is not enough to protect the best interest of the adopted children. Even the Civil Code allows, in principle, the adoption and the dissolution of adoption by the agreement of the parties. Thus current Korean Laws must be amended or improved to protect adopted children's interest and to cope with the international adoption standard. Compared with the Hague Adoption Convention, the Special Act for the Promotion and Procedure of Adoption need to give broader authorities to the Ministry of Health, Welfare and Family Affairs as a Central Authority and establish a Central Intercountry Adoption Agency as public authorities. The scope of the Act needs to include ordinary intercounty adoptions as well as the adoptions for the protection needed children. Regarding the required consent of adopted child and their parents, the Act need to include provisions that the family background studies of the adopted children and adopting parents must be exchanged before the adoption consent is given to the other and that the children's real intention must be considered before the decision of adoption. The exception provision regarding consent of birth parents must be provided when requiring those consents is practically unreasonable and undesirable to protect children's interest. Moreover, to protect adopted children interest during the adoption process, intercountry adoptions must be decided by the courts rather than by the parties of the adoption. To protect adoptees' access to information on their adoption afterwards, the data base on the intercountry adoption must be maintained and allowed to access with proper procedure. To include such improvements to the related laws, adoption provisions under the Civil Code and other related laws needs to be amended. To amend current laws, it must be considered that Korea can be a receiving state as well as a state of origin in the future since many foreign citizens are living in Korea and that the protection of the children born outside their marriage are needed in Korea.