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현행 친양자제도에 관한 연구

초록/요약

Full-adoption is a system which substitutes the relationship, the rights and duties between the former parents and the adoptee with those between the adoptive parents and the adoptee, terminating the relationship between the adoptee and the former parent once and for all. This system has been introduced in Korea by the revision of Civil Law in 2005 and operated in 2008; and the current system has been completed by revision in 2012, which has been done(triggered) accepting criticisms on the system in 2008. As a result, through two times of revision in 10 years, the current system has developed into the form from a contractual and normal adoption to an approval and full adoption, meeting international standard that makes an ideology of a compound interest. The current system, however, has several problems in the aspect of the child’s best interest from the statistical data related to the full-adoption and the indications from the foreign country, which comprises Japan, Germany, France, and the U.S.A. First, the former requirement for the adoptive parent and child is so strict that the accessibility of the potential adoptive parent and child cannot be protected. Second, the reasons for cancellation of adoptive relationship are not sufficient. They stop enforcing the adoption-relating parties to follow adoption procedure, which exists for the interest of the child. Furthermore, revocation of adoptive relationship does not contribute to the interest of the child at all; rather, adoptive parents often misuse it for him or herself against the child’s interest. This study will suggest solutions for the full-adoption system which increases the interest of the adoptive child. The aim of this study is to analyze the current Korean full-adoption system and the systems of foreign countries and to propose a better solution for the improvement of the adoption system. To do this, first of all, this study examines each provision in Civil Law, which regulates the full-adoption system and tries to describe how the full-adoption system is operating and affecting each adoption family in reality with statistic data and case-law. Then, it analyzes the full-adoption systems in foreign countries, which have had crucial effects on Korean system, comprising Japan, Germany, and France, the continental-legal-system countries and U.S.A., the Common-law-system country. Adoption in U.S.A. is mostly governed by state law, although limited federal statutes may come into play, that this study puts focus on two adoption laws; First, the Uniform Adoption Act which has been proposed by U.S. Uniform Law Commission and has been enacted by the state of Vermont. Second, the adoption law in the state of California in which the adoption records are highest. The examinations and analysis show several problems in current Korean adoption system. First, only married couples are allowed to adopt a child. This system is not a proper standard for allowance of adoption and it is depriving many prospective adopter and adoptee of opportunity to adopt and be adopted. There are many among non-married couples who are mature and eligible enough to nurture a child; and there are growing needs to acknowledge diverse forms of family in modern societies. Second, the law requires 3 years in marriage of prospective adoptive parents. This requirement, however, does not guarantee the stability of a family; rather, it demolishes the interest of potential adoptee and adoptive parents, needless to mention the promotion of the interest of them. Third, it does not protect the opportunity for the adoptee under 13 years to speak his or her opinion about the adoption, though the adoptee is the most important adoption-related party. The legal process need to be stipulated in the law that ensures the court to listen the opinion of the adoptive child before it finalizes the adoption. Fourth, only minors may be the object of full-adoption and there is no exception of provision for this, which has no ways to relieve the child in need to be adopted as a full-adoption. Fifth, it does not require any obligatory probationary period that adoption-related parties, containing the court, cannot obtain enough information before the adoption decree. Sixth, the evaluation and judgement on compatibility of adoption is formed by the family courts’ judge alone, though the legal expertise alone is not sufficient to decide whether to allow the adoption or not. Certified experts in child-growing/nurturing or developmental psychology and so on can help or assist the judge and promote the interest of the child. Seventh, the reasons for cancellation of adoption are too few and not sufficient to enforce the due process of adoption, though the cancellation of adoption is the only way to redeem the procedural flaw. Adoption is based on mutual consent of the adopter, adoptee and the former parents that there should be some way to adjust the flaws in declaration of intention if there are flaws. Eighth, the current adoption system allows the termination of adoptive relationship, called ‘Payang’, which does not apply to one’s real or biological child, though the provision states that the full-adoption child has the legal status of one’s in-marriage-born child. Furthermore, this termination system does not promote the interest of the child at all. With the intention of the full-adoption system to promote the interest of the child effectively, the formal requirements, such as ages and marriage period, should be reduced minimum; instead, the real or practical requirements should be enhanced which evaluate and judge the compatibility of adoption and filter inappropriate adoption applies. In addition, the system should be composed in the way it can enforce the adoptive parties to apply the requirements and due process. For all of this, financial and social policy support by government must be enhanced.

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초록/요약

친양자는 일반양자와 달리 입양 전 부모와의 모든 권리의무관계를 단절시키고 기존의 부자관계를 양친과의 권리의무관계로 대체하는 법률효과를 갖는 제도이다. 우리나라의 현행 친양자제도는 2005년 민법개정을 통해서 도입되어 2008년부터 실행되었고, 여러 가지 문제점에 대한 비판을 받아들여 2012년 개정을 거쳐 현재의 모습을 갖추게 되었다. 그 결과 현행 친양자제도는 계약형∙불완전양자에서 허가형∙완전양자의 형태로 변모함으로써 자의 복리를 이념으로 하는 국제적 기준에 부합하는 형태로 발전하였다. 그럼에도 불구하고 실제로 운영되는 측면을 보면 우리나라의 현행 친양자제도는 자의 복리나 제도의 취지에 반하는 몇 가지 한계를 가지고 있다. 친양자와 관련된 국내의 통계자료와 일본, 독일, 프랑스 및 미국의 입법례를 검토하여 파악한 문제점을 일반적으로 진술하면 첫째, 요건측면에서 양자 및 양친이 되기 위한 형식적인 요건이 엄격해서 잠재적인 양자 및 양친 될 자가 원천적으로 친양자제도로부터 배제되는 문제가 있다. 둘째, 효과 측면에서는 적법한 입양절차를 강제하는 기능을 가진 취소사유가 너무 협소하고, 파양제도가 친양자제도의 취지나 자의 복리 이념에 반하는 결과를 초래할 수 있다. 이와 관련하여 본 연구는 현행 친양자제도와 해외 주요국의 입법례를 통합적으로 분석하고, 자의 복리의 관점에서 문제점을 식별한 후 개선방향을 제시하고자 한다. 이를 위해서 먼저 우리나라의 현행 친양자제도가 어떻게 규정되어 있는지 살펴본 후에 통계와 판례를 통해서 친양자제도가 우리 사회에서 실제로 활용되는 모습을 구체적으로 그려보도록 한다. 그 후에는 우리나라에 중요한 영향을 끼친 대륙법 국가인 일본, 독일, 프랑스와 국제적 추세를 선도하는 영미법 국가인 미국의 입양법제를 살펴보도록 한다. 미국은 주(州)별로 입양법제가 상이하기 때문에 통일법제위원회(National Conference of Commiss- ioners on Uniform State Laws)에서 제안하고, 버몬트 주가 채택하고 있는 통일입양법(Uniform Adoption Act)과 가장 입양이 많은 주인 캘리포니아 주의 입양법제를 대표로 다루도록 한다. 개선될 필요가 있는 현행 친양자제도의 문제점은 다음과 같다. 첫째, 오직 법률상 부부에게만 양친 될 자격을 부여하고 있는데 이는 양자를 양육할 자격을 갖추고 있는지에 대해 실질적 판단기준으로서 적절하지 않으면서도 입양의 기회를 과도하게 축소하고 있다. 독신자 중에서도 여러 면에서 성숙하고 자녀를 양육할 자격을 갖춘 사람이 있으며, 점차 다변화되는 가족의 형태를 인정해야 하기 때문에 독신자에게도 입양을 허락하는 방법을 고려해야 한다. 둘째, 부부공동입양에 대해서 요구하는 3년간의 혼인계속기간을 요건으로 하고 있다. 위에서 살펴본 문제와 동일하게 실질적으로 가정의 안정성을 담보해주지 못하면서 잠재적인 양친들을 원천적으로 입양으로부터 배제하는 역할을 수행하기 때문에 자의 복리 증진에 기여하지 못하고, 오히려 자의 복리를 저해하고 있다. 셋째, 13세 미만의 아동에 대해서는 입양의 가장 중요한 당사자임에도 불구하고 입양 절차 속에서 의견청취의 기회를 법적으로 보장받지 못하고 있다. 입양의 가장 핵심 당사자인 아동 본인의 의사를 법원이 필요적으로 청취한 후에 이를 반영하여 판결을 내림으로써 실질적으로 입양이 자의 복리의 관점에서 적절한지를 판단할 수 있을 것으로 보인다. 넷째, 친양자 입양의 대상을 미성년자로 규정해두고 이에 대해서 예외조항을 전혀 두지 않음으로써 구체적 사안에서 성인이더라도 친양자 입양을 허가해주는 것이 타당한 때에도 이를 구제할 방법이 없다. 친양자 입양신청을 하기 전부터 실질적으로 친양자처럼 양육해왔고, 친양자 입양요건을 갖추었으나 신청 당시 성년에 이른 경우나 재혼가정에서 형제나 자매와 함께 입양을 할 때 형제나 자매는 친양자 입양을 하는데 본인만 성인이라서 일반양자로 입양되어야 하는 경우 등은 성년에 이르렀어도 친양자 입양을 허가해야 할 필요성이 있는 경우가 있기 때문에 이에 대한 예외규정을 둘 필요가 있다. 다섯째, 시험양육기간이 없이 입양이 이루어지기 때문에 친생부모를 비롯한 입양당사자들과 최종적으로 입양여부를 판단할 법원이 입양 판결 전에 충분한 정보를 얻을 수 없다. 입양이 자의 복리를 증진시킬지 여부를 판단하기 위해서는 입양신청자가 아동을 양육할 준비가 되어있는지 뿐만 아니라 아동의 상태, 아동과 입양신청자의 관계 등 여러 요소를 실질적으로 관찰하고 평가해야 하기 때문에 일정기간 이상의 시험양육기간 요건을 도입하는 것이 필요하다. 여섯째, 입양이 자의 복리에 기여할 것인지를 고려한 최종적인 입양여부의 판단이 오로지 가정법원의 법관의 견해를 바탕으로 이루어진다. 입양을 허가할지를 판단할 때는 사법적인 전문성이 최종적으로 필요하겠지만 아동의 성장과 양육을 둘러싼 제반 환경에 대한 인간학적 이해도 필수적이다. 법관 외에 전문상담가 등 공인된 전문평가관 그룹을 만들어서 평가의 전문성을 높이는 방식으로 가정법원의 판단을 보조 및 보완하고 이를 통해 입양 판결의 정확성과 신속성을 증진시켜야 한다. 일곱째, 친양자 입양의 취소는 입양과정의 절차적 하자를 치유할 수 있는 사실상 유일한 방법임에도 불구하고 현행 취소사유는 친생부모가 책임 있는 사유로 동의권을 행사하지 못한 때에 국한되어 있어서 친권 및 가족을 구성할 헌법적 기본권을 적절히 보호하지 못하며, 규정된 입양절차를 적법하게 준수하도록 강제하는 기능이 떨어진다. 현행 친양자 입양이 자의 복리를 위해서 최종적으로 국가가 개입하여 허가여부를 결정하지만 기본적인 입양의 요건은 당사자간 의사의 합치인 만큼 기망으로 인한 입양동의 등 추가적인 절차적 하자에 대해서도 취소를 인정할 필요가 있다. 여덟째, 친양자는 친생자와 동일한 지위를 가진다고 규정하면서도 친생자에게는 인정되지 않는 파양제도를 운영하여 양자를 부당하게 차별하며, 타당성 없이 자의 복리를 저해하고 있다. 자녀의 복리에 반하는 친자관계는 친권제한제도의 활성화를 통해서 규율 되어야 한다. 파양제도가 삭제되더라도 자녀의 복리를 위해 활용 가능한 법적 장치가 이미 마련되어 있다. 그럼에도 불구하고 존재하는 파양제도는 명목상 목적과 달리 실질적으로 양친을 위한 파양으로 오용되거나 제도의 존재만으로 친양자의 법적 지위와 입양가정에서의 동일성·친밀성을 약화시키고 있기 때문에 파양제도를 삭제해야 한다. 친양자제도가 진정으로 자의 복리를 위한 친양자제도를 운영하기 위해서는 잠재적 양친과 양자를 원천적으로 배제하는 형식적인 입양의 요건은 최소한으로만 적용하고, 입양의 적절성에 대한 실질적인 평가를 강화해야 한다. 또한 자의 복리를 위한 입양의 요건과 절차들이 확실하게 강제될 수 있도록 제도가 구성되어야 한다. 본 연구에서 제안하는 실질적 입양평가 강화를 위해서는 보다 많은 전문가들과 그들의 전문성이 요구되는 만큼 자의 복리를 위한 국가의 재정적∙정책적 지원이 강화될 필요가 있다.

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목차

국문초록 ······························································································ ⅶ

제1장 서론 ························································································· 1
제1절 연구의 목적 ·········································································· 1
제2절 연구의 범위 및 방법 ······························································ 3
1. 연구의 범위 ·········································································· 3
2. 연구의 방법 ·········································································· 4

제2장 친양자제도의 도입배경 및 현황 ··················································· 6
제1절 친양자제도의 도입배경 ··························································· 6
제2절 친양자제도의 이념으로서 ‘자의 복리’ ··································· 9
제3절 친양자제도의 현황 ································································ 12
1. 일반적 통계 현황 ································································· 12
2. 통계에 대한 검토 ································································· 13

제3장 현행 친양자제도의 내용 ···························································· 16
제1절 친양자의 개념 ······································································ 16
제2절 친양자 입양의 요건······························································· 17
1. 양자 및 양친 될 자의 자격 ···················································· 17
가. 양친 될 자 ······································································18
나. 양자 될 자 ····································································· 20
2. 입양의 의사표시 ·································································· 21
가. 친생부모의 동의 ······························································ 21
나. 아동의 동의 ···································································· 24
3. 가정법원의 허가 ··································································· 26
제3절 친양자 입양의 효과 ······························································ 29
1. 양자와 양친의 관계 ······························································ 29
2. 입양 전 친족관계 ································································· 29
3. 입양정보공개 ······································································· 30
제4절 친양자 관계의 해소 ······························································ 32
1. 취소 ··················································································· 32
가. 취소 사유 ······································································· 32
나. 취소의 효과 ···································································· 34
2. 파양 ··················································································· 34
가. 파양 사유 ······································································· 34
1) 친양자를 위한 사유 ························································· 35
2) 양부모를 위한 사유 ························································· 37
나. 파양의 절차 ···································································· 38
다. 파양의 효과 ···································································· 39

제4장 해외 입법례에 대한 비교법적 고찰 ············································· 40
제1절 일본 ··················································································· 40
1. 서설 ··················································································· 40
2. 입양의 요건 ········································································· 40
가. 양자 및 양친 될 자의 자격 ··············································· 41
나. 입양의 의사표시 ······························································ 41
1) 아동의 동의······································································ 41
2) 친생부모의 동의································································ 41
다. 시험양육기간 ··································································· 42
3. 입양의 효과 ········································································· 42
4. 입양의 해소 ········································································· 42
제2절 독일 ··················································································· 43
1. 서설 ··················································································· 43
가. 연혁 ·············································································· 43
나. 특징 ·············································································· 44
2. 입양의 요건 ········································································· 45
가. 양자 및 양친 될 자의 자격 ··············································· 45
나. 입양의 의사표시 ······························································ 46
1) 아동의 동의 ·································································· 46
2) 친생부모의 동의 ···························································· 47
3) 배우자의 동의 ······························································· 48
4) 의사표시의 방법 및 효력 ················································ 49
다. 시험양육기간 ··································································· 49
라. 전문입양평가 ··································································· 49
3. 입양의 효과 ········································································· 50
가. 친족관계의 변동 ······························································ 50
나. 입양정보공개 ··································································· 51
4. 입양의 해소 ········································································· 52
제3절 프랑스 ················································································ 53
1. 서설 ··················································································· 53
가. 연혁 ················································································ 53
나. 특징 ················································································ 55
2. 입양의 요건 ········································································· 55
가. 양자 및 양친 될 자의 자격 ··············································· 55
1) 양친 될 자 ····································································· 55
2) 양자 될 자 ····································································· 56
나. 입양의 의사표시 ······························································ 57
1) 아동의 동의 ·································································· 57
2) 친생부모의 동의 ···························································· 57

다. 전문입양평가 ·································································· 58
3. 입양의 효과 ········································································· 59
가. 일반적 효과 ···································································· 59
나. 일반양자 ········································································· 60
다. 입양정보공개 ··································································· 61
제4절 미국 ··················································································· 61
1. 서설 ··················································································· 61
가. 연혁 ·············································································· 61
나. 특징 ·············································································· 63
2. 입양의 요건 ········································································· 65
가. 양자 및 양친 될 자의 자격 ··············································· 66
나. 입양의 의사표시 ······························································ 68
1) 동의권자 ········································································ 68
2) 동의를 위한 기한과 요건 ·················································· 70
3) 동의 및 포기위탁의 내용 ·················································· 70
4) 동의의 효과 및 철회 ························································ 70
5) 입양동의가 철회된 경우 아동의 보호 ································· 71
6) 계자녀 입양에 대한 동의 ·················································· 72
7) 성년자 입양에 대한 동의 ·················································· 73
다. 시험양육기간 ··································································· 73
1) 개념 ·············································································· 73
2) 동의권자 ········································································ 73
3) 위탁절차 ········································································ 74
4) 양육기간 ········································································ 75
라. 전문입양평가 ··································································· 75
1) 시험위탁 전 평가 ···························································· 75
2) 입양 평가 ······································································· 76
3. 입양의 효과 ········································································· 77
가. 미성년자 입양 ································································· 78
나. 미성년자인 계자녀 입양 ··················································· 79
다. 성년자 입양 ···································································· 80
4. 입양의 해소 ········································································· 80
제5절 우리나라 친양자제도에 주는 시사점 ········································ 82
1. 서설 ··················································································· 82
2. 입양의 요건 ········································································· 82
가. 양친 될 자 ······································································· 82
1) 독신자 단독입양 ······························································ 82
2) 양친 될 자의 연령 ··························································· 83
3) 혼인계속기간 ·································································· 84
나. 양자 될 자 ······································································· 85
1) 입양대상자의 연령 ·························································· 85
2) 입양대상자의 동의 및 의견청취 ········································· 85
다. 친생부모의 동의 ······························································· 86
라. 시험양육기간 ···································································· 87
마. 전문입양평가 ···································································· 87
3. 입양의 효과 ········································································· 89
가. 친족관계 ·········································································· 89
나. 입양정보공개 ···································································· 89
4. 입양의 해소 ········································································· 89

제5장 현행 친양자제도의 개선방안 ······················································ 92
제1절 입양요건 ············································································· 92
1. 양친 될 자의 요건 ································································ 92
가. 서론 ··············································································· 92
나. 법률상 부부 ···································································· 93
다. 혼인계속기간 ·································································· 96
2. 친양자 될 자의 요건 ····························································· 98
가. 아동의 의견청취 ······························································ 98
나. 입양대상의 연령제한 ······················································ 100
3. 시험양육기간 도입 ······························································ 102
4. 전문입양평가 도입 ······························································ 104
제2절 입양효과 ············································································ 105
1. 취소 사유 ········································································· 105
2. 파양 ·················································································· 106

제6장 결론 ······················································································ 111


참고문헌 ························································································· 114

Abstract ························································································· 120

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