In a case where the foreign father-child intends to adopt a foreign woman as the full adoption, the case holding that the full adoption is not appropriate for the welfare of the child to be adopted, considering the situation of the child care, the motive of the full adoption, and all other circumstances, although the full adoption satisfies all the formal requirements, such full adoption is not appropriate.

In a case where the foreign father-child intends to adopt a female as the full adoption, the case holding that the full adoption is not appropriate for the welfare of the child to be adopted, considering the situation of fostering, motives of such full adoption, and all other circumstances, such as the fact that the full adoption satisfies all the formal requirements, but it is clear that confusion in family order may arise, and that the motive of such full adoption is aimed at realizing the welfare of the child rather than the welfare of the principal of the case.

Articles 877, 908-2, and 908-8 of the Civil Act

Appellant 1 and one other (Law Firm Accompanying, Attorneys Jeong-hee et al., Counsel for the plaintiff-appellant)

Principal of the case

Ulsan District Court Decision 2009Ra1264 dated July 6, 2010

The appeal of this case is dismissed.

The adjudication of the first instance shall be revoked. The principal of the case shall be fully adopted by the applicant.

1. Summary of this case

With respect to the judgment of the claimant's full adoption of the principal of the case, the court of the first instance dismissed the adoption of the son and female as full adoption on the ground that it is not suitable for the welfare of the principal of the case, and the Claimant filed the appeal of this case against it.

2. Basic facts

(a) The relationship between the parties;

The appellant is a legally married couple who completed the marriage report on March 28, 1978, and the principal of the case is a woman of the claimant who was born between the claimant and the claim 1 on May 29, 2006 and the non-claim 2 who was in a de facto marital relationship with the claimant on May 29, 206.

(b) Consent of natural parents;

Not only one natural parents of the principal of the case but also two others agree to adopt the principal of the case through full adoption.

C. The situation of fostering the principal of the case

1) Since the birth of the principal of the case, the de facto marital relationship between Nonparty 1 and Nonparty 2 was broken down, this court designated Nonparty 1 as the person with parental authority of the principal of the case on July 25, 2008. On September 23, 2009, upon the application for the alteration of the surname of the mother’s sex, changed the sex of the principal of the case to “e-mail,” such as the mother’s birth, and Nonparty 2 did not exchange the principal of the case or Nonparty 1 with the principal of the case on the other hand by fostering a new family thereafter.

2) After the birth of the principal of this case, the claimant has raised the principal of this case with the non-claim 1 in his residence. The principal of this case who is five years of age seems to have been growing normally in a stable family environment. However, the claimant is known to the non-claimer and the non-claimer who is the mother of this case with the knowledge of the non-claimer and the non-claim 1, who is the mother of this case, refers to ○○.

(d) the applicant’s ability to rear;

1) The claimant 1 was born in 1953, the claimant 2 was born in 1957, and the plaintiff 2 was born in 1957, and they were not relatively related to the maternal father and mother. The state of health is good, the marital relationship is very high, and there is no economic or emotional problem, and there is a very little relationship between families.

2) The claimant 1, as the representative of the real estate development company, owns approximately KRW 50 million property, and is expected to have no economic difficulties in fostering the principal of the case due to the fixed income of KRW 3 million per month.

3) The Defendant’s biological mother Nonparty 1 did not have any special property, received monthly income of KRW 700,000 per month, and served as a real estate intermediary’s accounting member, and lived together in the applicant’s residence.

E. Grounds for full adoption

In reality, petitioners and 1 do not have an economic condition to rear the principal of this case independently, while it is not easy for them to take care of a new male to take care of the principal of this case as the wife of an unmarried mother who raises the principal of this case alone, and even if they do so, even if they are responsible for the principal of this case throughout their life, from the viewpoint of the parent of the non-party 1, they cannot recommend the principal of this case to adopt the principal of this case to a third party and to live a new life to his father. Meanwhile, from the external father of the principal of this case, applicants have already been in the situation where the principal of this case had the ability and condition to well rear the principal of this case more than others, and the principal of this case has already become aware of the claimant as his parents every five years, considering that the principal of this case will begin school life of the principal of this case, it is helpful to legally state the applicant as their parents, and thus, they claim that the adoption of the principal of this case is the best method for the welfare of the principal of this case.

In other words, when considering the birth of the claimant's father, it is impossible to not adopt the principal of the case to a third party, and in this case, rather than the third party, the claimant's adoptive parent is helpful for the welfare of the principal of the case. Therefore, this method is a way that both the claimant's father's father's father, the principal of the case, and the claimant's wife's children are happy.

3. Determination

A. Relevant provisions of the Civil Act

Article 877 (Prohibition of Adoption)

A person who continues to exist or extends shall not be adopted.

Article 908-2 (Requirements, etc. for Full Adoption)

(1) Any person who intends to make full adoption shall make a request to the Family Court for such full adoption after meeting the following requirements:

1. A married couple who has been married for not less than three years shall be adopted jointly: Provided, That this shall not apply where one of the married couple has adopted the natural father of the spouse through full adoption for not less than one year;

2. The child to be fully adopted shall be under the age of fifteen;

3. Consent to such adoption shall be obtained from the natural parents of the child to be fully adopted: Provided, That the same shall not apply where consent cannot be obtained due to the loss of the parental authority or the death of the parents or any other cause;

4. A consent to the adoption of the legal representative under Article 869 shall be obtained.

(2) The Family Court may dismiss the request referred to in paragraph (1) if such full adoption is deemed inappropriate for the welfare of the child to be adopted, taking into consideration the situation of the child's fostering, the motive for such full adoption, the ability of the adoptive parents to rear the child, and other circumstances.

Article 908-8 (Applicable Provisions)

Except as otherwise expressly provided for in this Sub-Section, the provisions concerning adoption shall apply mutatis mutandis to full adoption unless they are contrary to the nature of such full adoption.

B. Criteria for determining full adoption

Although our customary system has started from the original system for the inheritance of the A(A), it is well known that the current system has been introduced to consider the welfare of the child first through the partial revision of the Civil Code in 2005.

As a requirement for full adoption, the Civil Act only prohibits the adoption of a couple who has been married for not less than three years, the adoption shall be made jointly, the child to be full adoption shall be under the age of 15, the natural parents of a child to be full adoption shall consent to such full adoption, and ④ If a child is under the age of 15, the consent of his/her legal representative shall be required, and there are no special restrictions on other legal matters.

However, considering the fact that full adoption is completely terminated by the relationship with the natural parents and that strong status formation takes effect between the adoptive parents and the new adoptive parents to obtain the status of a child born in the course of marriage, the Civil Code provides for the adoption of full adoption, unlike general adoption, ① it shall go through a judgment of the family court in the case of full adoption, and ② it is deemed inappropriate for the family court to dismiss the request for full adoption in cases where it is deemed inappropriate for the full adoption in consideration of the status of the child to be adopted, the motive for such full adoption, the ability of the adoptive parents to rear the child, and other circumstances.

Therefore, in determining whether to grant full adoption, priority should be given to the welfare of the child in light of the background leading up to the introduction of the full adoption system, but such strong status formation effect should also be taken into account, such as the motive and realistic necessity of full adoption, and impact on family relations.

C. Determination of the instant case

1) Comprehensively taking account of the facts acknowledged earlier, the instant application by the petitioners satisfies all the formal requirements as prescribed by Article 908-2(1) of the Civil Act and Article 877 of the Civil Act, and is determined to have the ability to care of the petitioners, and is sufficiently understood to have the level of openness of the petitioners who reached the instant application in the mind that all his/her married and girls would be well-grounded.

2) In addition, our Civil Act only prescribes that the surviving or extending person shall not be adopted, and our past custom does not require a brush letter (in addition, Supreme Court Decision 90Meu347 delivered on May 28, 191) that “the adopted person shall be a lineal male with the same fluence as that of both sides” (see Supreme Court Decision 90Meu347 delivered on May 28, 191). Therefore, it is difficult to view that the adoption of a foreign woman by the foreign father without considering individual and specific circumstances alone is not permissible against the public order and good morals.

3) However, considering the motive of adoption, current situation of fostering, and family relationship between the claimant and the principal of the case, the full adoption in this case is deemed inappropriate for the welfare of the principal of the case due to the following reasons.

A) Occurrence of confusion in family order

Unlike the case where the biological mother has already died 1) or where there is no actual relationship with the biological mother has already been severed and there is no exchange with the biological mother, the biological mother is still living together with the principal of the case and the claimant. It is clear that if the claimant adopts the principal of the case as a full adoption, the biological parent will be the parent, and the biological mother and the principal of the case will cause serious confusion with the family's order and relatives.

Of course, even though the principal of the case is aware of the claimant as his parent and there is no big confusion, even if the legal relationship between the principal of the case and the mother of the case is severed, there is still a biological and natural blood relationship. Rather, due to the complexity of such relationship, it is clear that the actual life of the family is very artificial and natural so that the mental stability of the principal of the case might be adversely affected due to the complexity of such relationship, and that if the principal of the case becomes aware of the truth surrounding his birth, it will eventually be in the crisis of the irrecoverable serious family relationship and the identity.

Therefore, even if allowing the adoption of this case to all family members, it is difficult to consider that the adoption of this case is likely to cause serious harm to the welfare of the principal of this case when argue is discovered, even if it appears that it is a happy way for all family members.

B) The motive of full adoption

Although there is no basis to interpret that the motive for full adoption should only be for the welfare of a child and that other motive should not intervene, it is clear that at least the welfare of a child should be the top priority motive for full adoption in light of the purpose of the full adoption system.

However, even according to the claim of the claimant itself, the adoption of this case seems to be the main motive of allowing the non-party 1 to marry more easily by allowing the case principal to no longer enter his child in the family relations register of the non-party 1, who is the non-party 1's unmarried claim, and allowing the non-party 1 to marry more easily. During the actual examination process, the claimant did not deny this point for practical reasons. If the adoption of this case is not allowed, the claimant stated that it cannot inevitably be adopted to the third party for the future of the non-party 1.

If so, the full adoption of this case is the primary motive rather than the welfare of the principal of this case, and the full adoption is only one tool to realize the welfare of the mother. Therefore, it is difficult to view the full adoption of this case as an appropriate situation for the welfare of the child in light of such motive.

C) realistic necessity of full adoption

Unlike the general adoption, full adoption has a strong status formation effect that completely separates the relationship with natural parents. Therefore, it is necessary to do so, while doing so, there is a need for the practical benefit or the need to be done by the method of full adoption.

With respect to the instant case, the Minister of Health and Welfare and the petitioners have resided in the same place after the birth of the principal of the case and have actually raised the principal of the case on behalf of the principal of the case, and the principal of the case has already been five years of age and has accepted the same reality as it is. In addition to the changes in the family relations register, the adoption is made, and there is no room to change the actual conditions of rearing or rearing of the principal of the case in addition to the changes in the entries in the family relations register, and in fact there is no practical restriction or difficulty of the applicant in fostering the principal of the case. Therefore, it is difficult to recognize the practical reason or necessity to

If the claimant wants to be a truth-finding, not a de facto legal meaning, it is not a method of full adoption that damages the essence of family relations, but rather a method of full adoption that respects the present fact-finding as it is, and it is judged that natural parents waive parental authority and the claimant exercise parental authority as a guardian of the principal of the case, rather than a natural solution.

D. Sub-committee

Therefore, although the applicant's application for full adoption of this case satisfies all the formal requirements, such full adoption is deemed inappropriate in light of the situation of the child care, motive of full adoption, and all other circumstances for the welfare of the principal of this case to be full adoption.

4. Conclusion

Therefore, the applicant's application for full adoption of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the appellant's appeal shall be dismissed, and it is so decided as per Disposition.

Judges Jin-Gyeong (Presiding Judge)

Note 1) Korea also had a custom to adopt a person who had a son’s resistance, as an exception to the brusation in the past, on the basis of the exception to the brusation in the past. However, even in this case, it was limited to the case where the son was in the state of his death, and thus there was no problem that the brus changed into the brusation in fact.