2015 Madan3** Child's claim for return (The Hague Convention)

A (1977 People, Gender: Women)

B (75*********************))

16******* -3*********)

2.D (08******* 3********))

2, 2016.2

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

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

3. Paragraph 1 can be provisionally executed.

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. The claimant is a person of special sovereignty who is born in Japan and lives in Japan.

B. On January 5, 2005, the claimant married with the other party and gave birth to the principal of the case while residing in Japan, and the principal of the case was born in Japan and was in the kindergarten and elementary school.

C. On April 25, 2013, the claimant, along with the principal of the case, took office on April 25, 2013, and was living separately from the other party. Since then, the claimant had taken care of the principal of the case.

D. In preparing an application for divorce on February 2014, the claimant and the other party agreed that the person with parental authority of the principal of the case is exercised by the claimant, but the declaration of divorce is not made.

E. The claimant, around July 2015, recovered from the other party’s father’s awareness and caused the other party to communicate the principal of the case. On July 29, 2015, the claimant transferred the principal of the case to Korea and added it to Korea.

8.2. He heard the words "to take the instant principal into the official port of Korea" and accordingly delivered the instant principal to the other party.

F. On July 29, 2015, the other party took the instant principal and entered the Republic of Korea to cut off contact with the claimant.

(g) The other party is residing together with a move-in report by the case principal at his domicile in the Republic of Korea.

H. Not only the claimant refuses to deliver the principal of the case but also does not allow any interview, such as contact with the principal of the case.

2. Determination

A. On October 25, 1980, the Hague Conference on International Law of Law on the Implementation of the Hague Convention on the Elimination of Child, adopted the Hague Convention on the Civil Conditions of the Omission of International Child (hereinafter referred to as the "Convention") in order to ensure the prompt return of, and visitation rights for, a child seized internationally, and entered into force on December 1, 1983, to be subject to the Convention, the Convention must have a child under the age of 16 prior to the infringement of the right to care for the child, and shall have a habitual residence in another Contracting State. Korea is a country that has acceded to the Convention on the Civil Conditions of the Omission of International Child, around December 12, 2012, Japan is a country that has acceded to the Convention, and in order to implement the Convention, the Convention was enacted on December 11, 2083 and hereinafter referred to as the "Act on the Implementation of the Hague Convention").

According to the above law, in Japan, the implementation law of the above Convention was enforced on April 3, 2014, and according to the law of this case, where the right of custody under the Convention is violated due to the illegal movement or detention of a child under the age of 16 who is subject to the Convention into a national country, the person whose right of custody is infringed may file a claim with the court for the return of the child (Articles 2(1)1, 11, and 12(1)), and the other party in the above claim is a person who infringes on the right of custody under the Hague Convention (Article 2(1) of the Supreme Court Regulations on the Implementation of the Hague Convention).

prescribed in this section.

B. Determination

Therefore, this paper examines whether the other party infringed the right of custody of the claimant by illegally moving or attracting the principal in Japan to the Republic of Korea.

1) According to the above facts of recognition, even though the legal divorce procedure of the claimant and the other party is not completed, the claimant and the other party were separated from April 2013, and had the intention of having the petitioner practically rear the principal of the case, and accordingly, the claimant continued to rear the principal of the case in Japan. Thus, the claimant seems to be the actual custodian of the principal of the case.

2) In addition, until August 2, 2015, the other party agreed to return the principal of the case to Japan where the claimant resides, and on the premise of this agreement, the other party agreed to return the principal of the case to the Republic of Korea, but in violation of the above agreement, the claimant did not return the principal of the case, and further, the applicant did not allow the contact with the petitioner residing in Japan, and the other party did not return the principal of the case without permission, in violation of the agreement to designate the domicile of the principal of the case or in violation of the agreement to designate the domicile of the principal of the case. It is reasonable to deem that

3) Ultimately, the other party is obligated to return the principal of the case in accordance with Article 12 of the instant Convention to the claimant, since it is determined that the other party violated the right of custody of the claimant under the instant agreement by illegally attracting the principal of the case in which he had his habitual residence in Japan to the Republic of Korea.

3. Conclusion

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

Judges Lee Jae-sung