2014 Down 30816 Child Claim for Return (The Hague Convention)

A (68*********************))

B (72******** 2***********))

C (05******** 4**********))

February 16, 2015

1. The claim of this case is dismissed.

2. The cost of trial shall be borne by the claimant.

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

1. Facts of recognition;

According to the records of this case and the purport of the whole examination, the following facts can be acknowledged.

A. On July 14, 2003, the claimant and the other party are legally married couple who reported a marriage on July 14, 2003 and their children D (living in 2004) and the principal of the case (living in 2005).

B. The claimant is a reporter belonging to ○○○○○○, and from July 2013 to July 27, 2013, the applicant served as a special strike in Mexico. On June 27, 2013, the other party filed a lawsuit against the claimant for divorce and division of property, etc. with the Seoul Family Court, but in order to recover the relationship with the claimant again, the said lawsuit was withdrawn on October 1, 2013, and the person in question was examined as Mexico together with the claimant on December 1, 2013.

C. However, the conflict between the claimant and the other party has not been resolved in Mexico, and the other party in the course of Ma was sent to the Republic of Korea around February 21, 2014 on the ground that the claimant exercised violence, and then sent the principal of D and the case at the Embassy of Korea on February 22, 2014, and then returned to Korea around February 22, 2014.

D. On March 18, 2014, the claimant sought a school where the principal of the case was present without notifying the other party, and unilaterally took the principal of the case and went to Mexico.

E. On June 13, 2014, the other party filed a lawsuit against the claimant for divorce, consolation money, etc. with the Seoul Family Court. On June 16, 2014, the other party requested a prior disposition to deliver the principal of the case, and on September 30, 2014, designated the claimant from the Seoul Family Court for the temporary sole person in charge of custody and custody of the principal of the case. The claimant was subject to a prior disposition to the effect that “the other party is provisionally handed over the principal of the case,” and the said prior disposition was not finalized as the claimant’s immediate appeal.

24. The principal of the case was brought to Korea with the assistance of local police in Mexico and has been brought to Korea until now.

2. The assertion and judgment

The claimant asserts that, even though the claimant was protecting and fostering the principal of the case in a peaceful manner, the claimant illegally seizes the principal of the case in a situation where the decision of prior disposition became final and conclusive, and illegally moves the principal of the case to the Republic of Korea and concealed them, and thus, the claimant's right of custody was infringed upon. Thus, the claimant asserts that the claimant should return the principal of the case in accordance with Article 12 (1) of the Hague Act, "a person whose right of custody under the Convention has been infringed due to the illegal movement or detention of the child to the Republic of Korea, may

Therefore, it is insufficient to recognize that the other party's act of bringing the principal to Korea is illegal, and there is no other evidence to acknowledge it, solely on the ground that the claimant unilaterally brought the principal of the case to Mexico prior to the confirmation of the above prior disposition ordering the other party to deliver the principal of the case to Mexico, and that the other party again brought the principal of the case to Mexico prior to the confirmation of the above prior disposition ordering the applicant to deliver the principal of the case.

Rather, the other party, at the end of December 2013, raising the principal of this case to Mexico, and even if the other party, at around February 2014, when moving the principal of this case to Korea from Mexico, it appears that the Korean Embassy cooperates, and there was no unlawful forced force, such as assault and intimidation, etc. (if one parent, while living together with a minor, took care of and raising the minor, continued to take care of the minor without exercising any assault, intimidation or de facto force against the other parent or his/her child, and move the minor to another place outside of the previous residence, and protect and rear the child, barring any special circumstance, the other party cannot be deemed to have been established as a lawful crime of kidnapping the minor under the Criminal Act, even if the other party did not obtain the consent of his/her parent, and the other party cannot be deemed to have unilaterally protected the principal of this case from the school without notifying the other party of his/her legitimate act of taking care of and raising the child to Mexico (see Supreme Court en banc Decision 2010Do1428, Jun. 20, 2013).

In addition, according to Article 12 (4) 3 of the Hague Act on the Implementation of the Hague Child Omission Convention, where a child is exposed to physical or mental harm or is in any other difficult situation due to the return of the child, the court may dismiss the claim for the return of the child. According to the records and the purport of the entire examination of the case, the fact that the principal of the case is suffering from mental distress due to frequent movement into Mexico and Korea, the fact that it is difficult for Mexico to leave Mexico without D, the fact that it is sufficiently adapt to the current life in Korea, and is expressing the other party and D to live together. In full view of the above circumstances, it is recognized that there is a serious risk that the return of the principal of the case will cause the situation where the principal of the case is returned to Mexico and the person of the case is difficult to check the principal of the case.

Therefore, the claimant's claim for return of the child of this case cannot be seen as one mother or with no reason.

3. Conclusion

The motion of this case shall be judged in the same manner as the disposition is without merit.

Judges Song Jae-woo