아동 반환재판의 집행에 관한 개정 제언
Proposals for the Return of the Enforcement of Child Return Orders
현소혜(성균관대학교)
29권 3호, 441~502쪽
초록
The current Act on the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction in Korea provides only for indirect enforcement measures—such as compliance orders, fines, and detention—in relation to the enforcement of return orders in international child abduction cases. Direct enforcement is regulated merely by court practice rules, and there remains controversy over whether additional indirect enforcement under the Civil Execution Act may also be applied. This situation not only hinders the realization of the Convention’s fundamental principle of prompt return but is also undesirable from the perspective of safeguarding the human rights of the child and other parties involved. This study aims to propose legislative reform measures concerning the enforcement of child return orders and the exercise of coercive power in such proceedings, drawing on international standards as well as German and Japanese legislative examples. The specific proposals are as follows: (1) for children under the age of three who lack decision-making capacity, direct enforcement should be permitted, allowing the enforcement officer to exercise physical coercion within the necessary limits; (2) for children aged three or older, substitute enforcement should be allowed, in which the enforcement officer or an assistant explains and persuades the child on behalf of the obligor, while removing any obstruction by the obligor; (3) where direct or substitute enforcement is expected to be ineffective or has failed, indirect enforcement through monetary sanctions or detention against the obligor should be permitted; (4) if one year has passed since the judgment became final and the child explicitly refuses to return, the enforceability of the return order should be excluded; (5) judges should be empowered to select, on a case-by-case basis, the enforcement methods that best serve the child’s welfare and the goal of prompt return, while ensuring that enforcement procedures are completed within one year.
Abstract
The current Act on the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction in Korea provides only for indirect enforcement measures—such as compliance orders, fines, and detention—in relation to the enforcement of return orders in international child abduction cases. Direct enforcement is regulated merely by court practice rules, and there remains controversy over whether additional indirect enforcement under the Civil Execution Act may also be applied. This situation not only hinders the realization of the Convention’s fundamental principle of prompt return but is also undesirable from the perspective of safeguarding the human rights of the child and other parties involved. This study aims to propose legislative reform measures concerning the enforcement of child return orders and the exercise of coercive power in such proceedings, drawing on international standards as well as German and Japanese legislative examples. The specific proposals are as follows: (1) for children under the age of three who lack decision-making capacity, direct enforcement should be permitted, allowing the enforcement officer to exercise physical coercion within the necessary limits; (2) for children aged three or older, substitute enforcement should be allowed, in which the enforcement officer or an assistant explains and persuades the child on behalf of the obligor, while removing any obstruction by the obligor; (3) where direct or substitute enforcement is expected to be ineffective or has failed, indirect enforcement through monetary sanctions or detention against the obligor should be permitted; (4) if one year has passed since the judgment became final and the child explicitly refuses to return, the enforceability of the return order should be excluded; (5) judges should be empowered to select, on a case-by-case basis, the enforcement methods that best serve the child’s welfare and the goal of prompt return, while ensuring that enforcement procedures are completed within one year.
- 발행기관:
- 한국민사소송법학회
- 분류:
- 법학