Claimant (Law Firm Chungcheong, Attorney Lee Jae-ju, Counsel for plaintiff-appellant)

Other party (Law Firm Han & Yang LLC, Attorneys Cho Jong-tae, Counsel for the plaintiff-appellant)

Principal 1 et al.

Seoul Family Court Decision 2016 Madan52500 decided April 21, 2017

1. The appeal of this case is dismissed.

2. Costs of appeal shall be borne by the claimant;

The judgment of the first instance shall be revoked. The other party shall return the case principal to the claimant.

1. Facts of recognition;

The following facts are acknowledged according to the overall purport of records and examinations:

A. On April 13, 2006, the claimant who is three years of age in Japan and the other party who was born and grown in Korea had been married in Japan and had been living in Japan. On January 2, 2007, the principal of the case, who was born on January 2, 2007 and the principal of the case, who was born on June 1, 2009, had two children.

B. On June 28, 2016, the claimant and the other party entered the Republic of Korea and the principal of the case without the consent of the claimant and the principal of the case.

C. After entry, the other party resides with the principal of the case at the home of the other party located in Songpa-gu Seoul, and the principal of the case is attending an elementary school in Korea from September 1, 2016.

2. Determination

(a) Occurrence of a duty to return a child;

According to the above facts of recognition, the other party infringed the right of custody of the claimant who is the joint custody of the principal of this case by moving the principal of this case who has his habitual residence in Japan to Korea, and this constitutes an unlawful movement of a child as prescribed by the Convention on the Civil side of International Child Desertion (hereinafter “Child Desertion Convention”) and the Hague Act on the Implementation of the Hague Child Desertion Convention (hereinafter “HH Act”), and thus, the other party is obligated to return the principal of this case to the claimant in accordance with Articles 3 and 12 of the Child Desertion Convention and Article 12(1) of the Hague Child Desertion Act.

B. Determination on the grounds for exemption from return

The other party has continued to assault the principal of the case with the other party during the marriage period, and the principal of the case has become a party or witness of such assault, and in this situation, the other party asserts that returning the principal of the case to Japan would expose the principal of the case to physical or mental harm or be faced with other difficult situations.

In light of the fact that the purpose of the Child Desertion Convention and the Hague Act is to prevent the taking of a child by regulating the prompt return procedure of the child, consideration of the above "serious risk" should be interpreted strictly. However, if a strict interpretation, such as the case of the victim's taking away of domestic violence, is likely to adversely affect the substantial welfare of the child, such strict interpretation should be mitigated. In other words, the claimant was punished several times during the marriage period, and the applicant used verbal abuse and violence. The victim 1 appeared to have been witnessd several times during the marriage period (Provided, That materials submitted by the other party alone are insufficient to acknowledge the fact that the claimant did assault the principal of the case, and there is no other evidence to acknowledge that there is no possibility that the claimant suffered from mental harm to the principal of the case, and that there is no possibility that the claimant might have suffered from the mental harm to the principal of the case, and that there is no mental harm to the principal of the case, and that there is no mental harm to the victim of the case, and that the claimant of the case could not return the victim of the case to Japan.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so decided as per Disposition by the appellant.

Judges Lee Do-hion (Presiding Judge)