헤이그 국제아동입양협약의 이행을 위한 ‘국제입양에 관한 법률’의 주요 내용과 문제점

Korea signed on May 24, 2013 the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Convention”), adopted in 1993 at the Hague Conference on Private International Law, which aims to protect the best interests of children in international adoption, but has not yet ratified it. In the past, several bills on intercountry adoption have been proposed at the National Assembly but have not been enacted. Finally, on July 18, 2023, the Act on International Adoption (“IAA”) and the Act to Amend the Special Adoption Act were promulgated, and the IAA and the “Special Domestic Adoption Act” will come into force on July 19, 2025. This article discusses the changes in Korea’s international adoption legal system and private international law issues, focusing on the Convention and the IAA. The Convention establishes minimum substantive requirements for the protection of children in intercountry adoption, provides for international cooperation and coordination, and ensures the international recognition of adoptions made pursuant to the Convention. The IAA is an important piece of legislation, first, to implement the Convention in Korea thereby reorganizing the adoption system to strengthen state responsibility in intercountry adoption. Second, IAA also governs adoptions not covered by the Convention. The implementation of the Convention is a matter of international family law, private international law in its broad sense, and international human rights law (i.e., the protection of the human rights of adoptees, especially adopted children). While it is very fortunate and welcome that the IAA has finally been enacted, albeit belatedly, there are still gaps as follows in the IAA that need to be addressed: First, in the intercountry adoption to Korea (Chapter 2, Section 2), Article 22(1) of the IAA provides that if an adoption is finalized in the country of origin, “it shall have effect in Korea in accordance with the law of the country of origin (being a Contracting State).” The underlined part is in direct contradiction to Article 26 of the Convention setting forth the effect of recognition under the Convention and should be amended. Second, in the intercountry adoption to Korea (Chapter 2, Section 2), Article 22(2) of the IAA provides that “if the requirements under Article 217(1) of the Civil Procedure Act (“CPA”) are met, it shall have effect in Korea in accordance with the law of the country of origin (being a non-Contracting State).” The underlined part is against Article 217 of the CPA regarding the recognition of foreign judgments. Therefore, it is necessary to arrange for the Korea Private International Law Association to review the IAA and revise the same before its implementation. Subordinate legislation (presidential decree, ministry of health and welfare decree, and supreme court rules) under the IAA should be properly prepared during the time remaining until the IAA enters into force. The Korean Government should also take appropriate measures to ratify the Convention, including making various declarations in time for its entry into force. Adoption is a very important legal system because (i) it changes the status (parent-child relationship) of a person (adoptee) as a member of society, (ii) the national laws of the country of origin and the receiving country, which stipulate different requirements and effects of adoption, are applied, and (iii) the Convention being an international norm at a different level, is applied overlappingly, so the legal ramifications surrounding intercountry adoption governed by the Convention are inevitably very complicated.