국제가사사건을 다루는 법률가들께 드리는 고언(苦言)Ⅱ

In 2016, I published an article entitled “Candid Advice to Korean Lawyers dealing with International Family Cases” to point out that Korean lawyers had failed to properly recognize the private international law issues arising from international family law matters and to call for improvement. However, as awareness is still wanting in Korean lawyers, I write this article as a follow-up. The following international family and inheritance law issues are discussed here. First, intention to marry in international marriage and the distributive connection. While under the Private International Law Act of Korea, the intention to marry follows the principle of distributive connection, the question is whether the distributive connecting principle can be implemented when one spouse's governing law requires a substantive intention to marry and the other spouse's governing law requires a formal intention to marry, on the assumption that the intention of each spouse satisfies the requirements of the respective governing laws. The Supreme Court's decision in 2022 on this point is not satisfactory in many respects. Second, division of the matrimonial property upon divorce. The Korean Civil Code specifies the division of matrimonial property at the time of divorce. There is controversy over whether the governing law of property division is the law applicable to divorce or the law applicable to matrimonial property, and lower court precedents are divided. Third, claims for maintenance between former spouses after divorce. Since Korean law does not recognize maintenance obligations between former spouses after divorce, Korean lawyers tend not to file claims even when the governing law is a foreign law which recognizes maintenance obligations between former spouses after divorce. Korean lawyers representing a spouse (especially the wife in a case concerning divorce), are strongly advised to consider filing a claim for maintenance in the future. Fourth, the Korean court's recognition decision (or declaration of legitimacy) on an erstwhile Korean who was fully adopted in the United States. Upon full adoption, a Korean child's relationship with his or her biological parents is severed. Since recognition of another person's child is not permitted under Korean law, a recognition should not be permitted in that case. However, the Seoul Family Court rendered a recognition decision without reviewing the issues properly. Fifth, the Seoul Family Court's decision on a surrogacy case and the lack of private international law considerations. Korean intended parents entered into a surrogacy arrangement with a Korean surrogate living in the U.S. to give birth to a child by transferring the embryo into the uterus of the surrogate mother and submitted in Korea a birth certificate of the child born to the surrogate mother. However, the competent Korean authority refused to register the intended mother as the mother in accordance with the “mater semper certa est” principle (so-called ‘birth principle’). In that case, international surrogacy law issues were not raised, and the intended parents' private international law considerations were very insufficient to achieve their goal. Sixth, can only Korean courts provide court permission required for international adoption? In other words, if a court permission for international adoption is required under Korean law being the governing law, a question arises as to whether a foreign court can also grant permission if the foreign decision satisfies the requirements for recognition under Korean law. Seventh, the enforcement of the court's decision ordering the return of a child in accordance with the Hague Child Abduction Convention (Abduction Convention). Korea has implemented the Abduction Convention, but enforcement of the court's decision ordering the return of a child is not properly implemented. In 2022 and 2023, the U.S. State Department designated Korea as a ‘country demonstrating a pattern of noncompliance.’ In response to the designation, the National Court Administration has enacted new regulations, and ways to improve the effectiveness of the Abduction Convention are being discussed in Korea. Eighth, recognition of a guardian appointment decision and other protective measures by foreign courts. At the request of the daughter of Jeong-hee Yoon, a famous Korean actress in the 1960s and 1970s, the Seoul Family Court made a decision in March 2022 to initiate adult guardianship of Ms. Yoon and appointed the daughter as a guardian. However, it was reported that there had already been a decision of a French court to appoint the daughter as her guardian. If so, the recognition and enforcement of the French court decision and the scope of authority of the guardian appointed in France could have been an issue in Korea. However, the Seoul Family Court decision on March 24, 2022 seems to have treated the case as if it were an adult guardianship case without foreign element. Ninth, divorce decisions, adoption decisions, and other status-related decisions in foreign courts and enforcement judgment of Korean courts. Here, the issue is whether an enforcement judgment of a Korean court is necessary for the registration of the change of the status, and the problem is that the Supreme Court's regulations are inconsistent. Tenth, a plan to exclude reserved portion of an estate through private international law upon inheritance. Recently, various methods of excluding reserved portion of an estate are discussed in Korea, but there is not much discussion as to whether the same may be achieved through private international law. Here, such an option is discussed. Eleventh, characterization of the period for reporting the heir's waiver of inheritance. The report itself of an heir's waiver of inheritance is a matter of form of legal act. However, there is a question as to whether the period for such report and the court’s acceptance thereof are also a matter of form of legal act. If the answer is yes, the period can be extended by a foreign court and a report can be made to that court in accordance with the principle of locus regit actum. However, I believe that the better view is to regard it as a matter of substance rather than a matter of form and affirm the validity by applying the legal principle of substitution. Korean lawyers who have no awareness of private international law issues including international jurisdiction and governing law or who wish to remain in the world of Korean law alone are respectfully recommended not to deal with international family law cases.