In a case where Gap and Eul, who are legal married couple Eul and Eul, lived in Japan with Eul's children Byung (the 2010 children) and live in Japan, and Eul and met Eul and Byung only once a month, and Eul went to Japan, Byung and entered Korea and reside together, the case holding that Eul is obligated to return Byung to Eul pursuant to Articles 3 and 12 of the Convention on the Civil side of International Child Desertion and Article 12 (1) of the Hague Convention on the Implementation of the Child Desertion Convention

In a case where Gap and Eul, a legal couple of Eul, entered Japan along with Eul's children Byung (2010 children), and met Eul and Byung in Japan at least once a month, and Eul went to Japan, and Eul went to Japan and entered Korea and reside together, the case holding that Eul violated Eul's right of custody for Byung's joint custody by moving Byung who has his habitual residence in Japan to Korea, and Eul is obligated to return Byung to Eul pursuant to Articles 3 and 12 of the Convention on the Civil Measures of Child Desertion and Article 12 (1) of the Hague Convention on the Implementation of the Hague Child Desertion Convention.

Articles 3 and 12 of the Convention on the Civil Effects of International Child Desertions, and Article 12(1) of the Act on the Implementation of the Hague Child Desertion Agreements

Claimant (Law Firm No. Gong & Kim, Attorneys Go-jin et al., Counsel for the plaintiff-appellant)

Other party (Attorney Go Jin-jin)

Principal of the case

1. The other party shall return the principal of the case to the claimant.

2. The cost of the trial shall be borne by the other party.

1. Facts of recognition;

The following facts can be acknowledged in full view of the records and the overall purport of the examination of the case.

A. On May 10, 2010, the claimant and the other party gave birth to the principal of the case after filing a marriage report.

B. The claimant and the other party continued to live in Japan after marriage, and from March 201 to January 2012, 201, the claimant and the other party lived in Korea (a part of the above periods were residing in Japan in the claimant married). From January 2012 to January 201, all of their families lived in Japan.

C. From June 2015, the other party entered Korea and returned to Japan, and the applicant and the principal of the case were only once a month when he/she traveled to Japan.

D. On October 2, 2015, the other party met the petitioner and the principal of the case and went to Japan, and entered Korea on October 6, 2015.

E. Afterward, the other party is residing together with the principal of the case at his domicile in Korea.

2. Determination

(a) Recognition of duty to return a child;

According to the above facts, although the principal of this case was residing in Korea from March 201 to January 201, 201, he/she had resided in Korea except for this, and in particular, from January 201 to October 6, 2015, he/she lived in Japan from January 201 to October 6, 2015. As such, the other party infringed on the right of custody of the applicant for the joint custody of the principal of this case by moving the principal of this case who has his/her habitual residence in Japan to Korea. Thus, the other party is obligated to return the principal of this case pursuant to Articles 3 and 12 of the Convention on the Civil Measures of the International Child Desertion (hereinafter “The Hague Convention”), and Article 12(1) of the Hague Convention on the Implementation of the Child Desertion Convention (hereinafter “Performance Act”).

B. Determination on the grounds for exception to return of the other party

1) As to the assertion of new environmental adaptation

According to Article 12 of the Hague Convention and Article 12(4)1 of the Implementation Act, the other party may dismiss the claim for return where one year has passed since the date of unlawful movement of the principal of the case and the principal of the case had already been adapted to the new environment. However, according to the above recognized facts, the claim for return may be dismissed if the principal of the case was illegally moved to Korea on October 6, 2015, and one year has not passed since the principal of the case had already been aware that the principal of the case had been adapted to the new environment. Thus, the above assertion is without merit.

2) As to the assertion that the claimant consented to the movement of the principal of the case

Although the other party asserts that the claimant consented to the living of the principal in Korea, there is no evidence to acknowledge it, rather, the claimant reported to the police on October 6, 2015 about the fact that the principal of the case was not returned to Korea, it is reasonable to view that the other party has moved the principal of the case to Korea without the agreement between the claimant and the principal of the case on his living in Korea. Thus, the other party's argument is without merit.

3) As to the assertion that there is a serious risk

If the principal of the case is returned to Japan, the other party asserts that there is a serious risk that the principal of the case may be exposed to physical or mental harm or in any other difficult situation. Thus, the other party cannot be viewed as a serious risk as stipulated in Article 13 of the Hague Convention and Article 12 (4) 3 of the Implementation Act, and there is no other evidence to acknowledge the other party's assertion. Thus, the other party's assertion is without merit.

4) As to the assertion that the principal of the case raises an objection to the return to Japan

According to Article 13 of the Hague Convention and Article 12 (4) 4 of the Implementation Act, where a child raises an objection to the return, and it is deemed appropriate to consider the child’s opinion, the claim for return may be dismissed in case where it is deemed that the child has reached the age and maturity of the child. According to the above facts established, the claimant’s age at around January 2016, when the principal of this case talks with the principal of this case in Korea, is about 5 years and 7 months, and it is not deemed that the child has reached the age and maturity as much as he/she considers the principal’s opinion of this case. Thus, the above assertion cannot be accepted.

3. Conclusion

Thus, the claimant's claim of this case shall be accepted and judged as ordered by the court.

Judges Lee Jae-sung