국제입양법에 따른 국내로의 입양의 요건과 절차

The adoptions of children from foreign countries to the Republic of Korea (“Korea”) will be comprehensively regulated under Korea’s International Adoption Act (“KIAA”), which is set to take effect on 19 July 2025. Enacted to implement the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993 (“Convention”), the KIAA establishes detailed requirements and procedures for international adoptions to Korea. Its primary objectives are to safeguard the best interests of the child and strengthen the accountability of the Korean government in managing the intercountry adoption process. This article examines the KIAA’s implications, emphasizing the necessity of ensuring its proper application to prevent cases that fall within its scope from being improperly excluded. The Ministry of Health and Welfare, the National Center for the Rights of the Child, other entrusted organizations, and family courts must avoid denying the applicability of the KIAA in cases where it can be reasonably inferred, based on all relevant circumstances, that the child’s entry into Korea was for the purpose of adoption. Furthermore, they must exercise caution in prematurely recognizing that the child has established habitual residence in Korea, especially in cases where the child has not fully integrated into Korean society. International adoptions to Korea under the Convention and the KIAA raises numerous complex issues of private international law. Both Article 19 of the KIAA and Article 18 of the Domestic Adoption Act are classified as internationally mandatory provisions under Article 20 of Korea’s Private International Law Act (“KPILA”), even if foreign law is designated as the law governing adoption. Article 22(1) of the KIAA, based on the principle of recognition of legal status established abroad, provides that an adoption finalized in the State of origin, whether through a contractual process or a judicial proceeding, is automatically recognized in Korea. Article 22(2) stipulates that an adoption judgment rendered in a non-Contracting State of the Convention is recognized in Korea under the principle of recognition of foreign judgments, applying Article 217(1) of Korea’s Civil Procedure Act mutatis mutandis. Article 22(3) of the KIAA further provides that adoptions established through non-judicial means in non-Contracting States must receive additional approval from Korean family courts, indirectly enforcing control over the applicable laws. When Korean family courts issue adoption approval judgments under Articles 22(3) and 23 of the KIAA, issues of international jurisdiction and governing law arise. In cases where the governing law of adoption is the adoptive parents’ foreign law of nationality, questions regarding the principle of substitution or adaptation may arise. Additionally, the doctrine of renvoi (including hidden renvoi) could result in the governing law being re-designated as Korean law. It is crucial to consider the hierarchy and interaction between the KPILA, the KIAA, and the Domestic Adoption Act, as specified in Article 6 of the KIAA. A teleological and purpose-driven interpretation of the specific provisions of the KIAA should be developed to resolve potential conflicts. Where interpretative efforts prove insufficient to address textual ambiguities, legislative amendments may be necessary to provide clarity and resolve controversies.