국제입양법상 국외로의 입양 절차에 관한 검토

In 2013, Korea joined and signed the HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION (hereinafter referred to as the 'Intercountry Adoption Convention' or 'Convention') adopted by the Hague Private International Law in 1993. However, due to various political circumstances or legal and institutional problems, it has not ratified the Convention until now, more than 10 years have passed, and has recently completed legislative preparations for ratification of the Convention. The Special Act for Adoption was abolished, and divided into international and domestic adoptions, international adoption is governed by the Special Act on Intercountry Adoption, and domestic adoption is governed by the Special Act on Domestic Adoption. Both laws are expected to take effect from July 19, 2025. Among them, the Special Act on Intercountry Adoption has the character of an implementation law for implementing the Convention and at the same time has the character of a basic law for the adoption of children with international factors. This law stipulates the requirements and procedures for both sending a child for adoption abroad and for domestic adoption. This article focuses on the case of Korean children being adopted abroad among the contents of the Special Act on Intercountry Adoption to be implemented in the future, introduces and reviews the requirements and procedures, and analyzes the problems. The specific problems raised in this paper are as follows. First, (1) it is about the concept of international adoption governed by international adoption law. Since the Special Act on Intercountry Adoption is basically an implementation law of the Convention, it defines narrowly based on the international movement of permanent residence based on the concept of intercountry adoption under the convention. Strictly speaking, this is only a convenient definition to limit the application of the Convention, and international adoption, which is generally referred to as adoption with international elements, is not limited thereto. For this reason, when using international adoption terms in the future, the definitions of intercountry adoption convention must be kept in mind, but it has become difficult to distinguish them from general international adoption with foreign factors other than intercountry adoption under the Convention or the Special Act on Intercountry Adoption. Next, (2) in accordance with Article 6 of the Special Act on Intercountry Adoption, the legal application relationship between private international law and the Special Act on Intercountry Adoption of domestic corporations is regulated, but there is a problem in that the contents of the rules are inconsistent and unclear. Article 6 of the the Special Act on Intercountry Adoption regulates international adoption to which the Convention is applied and intercountry adoption to which the Convention is not applied, but there is a problem that the application relationship varies depending on the nature of the individual discipline or whether international mandatory regulations are enforced. (3) the Special Act on Intercountry Adoption is an implementation law of the Convention and has a substantive domestic law as a general regulations on adoption with foreign factors. It is limited to children and persons subject to protection, and there are insufficient regulations applied in relation to non-contracting countries. (4) Regulations on adoption with foreign factors that do not apply to the Special Act on Intercountry Adoptiont will still be subject to the applicable law set by private international law, and in this case, under Article 71 of private international law, it is also necessary to review the relationship with the Special Act on Intercountry Adoption as a requirement for consent and approval under the law of children.