헤이그 국제아동탈취협약상 청구요건 검토 ―아동의 상거소 및 양육권 침해의 불법성을 중심으로―

Abstract

The Hague Conference on the Civil Aspects of International Child Abduction was enacted in 1980 to prepare for the so-called “International Parental Child Abduction” caused by the illegal movement or detention of children by parents. In Korea, the Convention took effect on March 1, 2013, and the Hague Act on the Implementation of the International Convention on the Exploitation of Children has been enacted and implemented. The purpose of the Convention is to prevent so-called forum shopping, in which parents move or attract children for the purpose of acquiring legal land favorable to the judgment of the main issue of custody, and to realize child welfare through rapid return of children to their original residence. The Convention presupposes the assumption that rapid return generally or typically contributes to the welfare of children. In this sense, the “Principle of Rapid Return” is identified with the purpose of the Convention itself, which is the best interest of children. The speed of return constitutes the “basic principle of hearing” in the child return trial and serves as the basis for the “limited interpretation” of the reasons for refusal to return. Due to the importance of exceptional reasons to reject rapid returns, not only our practice but also the practice of contracting countries tend to focus on the reason for refusal rather than actively reviewing the requirements of the return request, and seek a balance between the principle of rapid return and the reason. Therefore, this article somewhat changed the perspective from the discussion so far, focused on the requirements of the claim, and reviewed the detailed issues arising therefrom. In the recent Hague child return case, the parties’ understanding of the agreement has increased and the practice of the contracting country has accumulated, and the child return trial is often dismissed due to the lack of requirements. In the text, first, the issue of international jurisdiction, which is the premise of the child return trial, was reviewed (II). Next, the requirements for claims regulated by the Convention and specific issues in its interpretation were derived (III), and the practices of the Contracting States were reviewed in detail, including separate case laws formed in the practice of the Contracting States (Ⅳ, Ⅴ). Finally, implications for our law were derived based on the analysis and evaluation of the practice of contracting countries (Ⅵ).