1 / 38
I. Introduction
II. Reform of the Child Support Enforcement System in Korea in 2009
III. Introduction of Child Support Calculation Table in 2012 and its Revision
in 2014
IV. Reform of the Child Support Enforcement System in Korea in 2015
V. International Collection of Child Support: Private International Law
VI. Hague Conference on Private International Law and Korea
VII. Concluding Remarks
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I. Introduction
1. Background
• Child support is indispensable for the living and interests of children.
If parents obligated to support the children refuses to pay child support and the custodial
parent is not in a position to seek payment, it is the duty of the State to intervene and to
enable the children in need to realize their rights to child support.
• Child support is urgent especially in the case of single-parent family without sufficient
financial resources. One of the most important causes of single-parent family is divorce.
• Only a small number of non-custodial parents is paying child support regularly.
Legislators of the Republic of Korea (“Korea”) have responded by a series of legislative
reforms in order to cope with such problem.
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I. Introduction
2. Order of Presentation
• Domestic Collection of Child Support: Efforts of Korea to secure child support payment in
domestic context
 Reform of the Child Support Enforcement System in Korea in 2009 (Ch. Ⅱ.)
 Introduction of child support calculation table of the Seoul Family Court (Ch. Ⅲ.)
 Reform of the Child Support Enforcement System in Korea in 2015 (Ch. Ⅳ.)
• International Collection of Child Support
 Recent lower court decisions in “Kopino cases” (Ch. V.)
 “Hague Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance” of 2007 (“2007 Convention”) and Hague Protocol on the Law
Applicable to Maintenance Obligations” (“2007 Protocol”)
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II. Reform of the Child Support Enforcement System in Korea in 2009
1. Rules on Child Support under the Civil Act
•
•
Principle of parents’ joint support obligations
 Parents shall jointly bear the obligation of child support under the Civil Act until the children attain the age
of maturity, i.e., 19 under the Civil Act.
Two types of divorce available under the Civil Act
 Judicial divorce (divorce in judicial proceedings): Similar to any other civil procedure in Korea in terms of
its basic structure. Once the decision becomes final, conclusive and no longer subject to ordinary review, the
marital relation is dissolved.
 Consensual divorce (divorce by mutual consent):
Application
for judge’s
certification
Waiting period of 3
months for a couple with a
minor child unless
domestic violence or other
urgent circumstances are
involved
Couple's
agreement on the
rearing of minor
children or the
original copy of
the court
decision
Judge’s
interview to
verify their
intent
Issuance of
certificate
Spouses’
filling of
report to
competent
authority
Marital
relation
dissolved
5 / 38
II. Reform of the Child Support Enforcement System in Korea in 2009
1. Rules on Child Support under the Civil Act
• Consensual divorces account for about 80 percent of all divorce cases
 When a parent is appointed as a custodial parent, she may request the non-custodial parent to
pay child support. In practice, parties seek a monthly payment of certain amount until the minor
child attains the age of maturity, i.e., 19 under the Civil Act.
 If a custodial parent has reared a child alone for whatever reasons, she or he can request the noncustodial parent to share the appropriate portion of the child support payment.
 The obligation to rear a child arises at the time of its birth so that a custodial parent can seek
reimbursement of past child support actually borne by her or him.
• Automatic adjustment by indexation is not generally used in Korea.
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II. Reform of the Child Support Enforcement System in Korea in 2009
2. Background of Reform
•
Legal bases securing child support payment before 2009
 Civil Enforcement Act and Family Litigation Act (or Family Procedure Act)
A. Civil Enforcement Act
•
•
General rules applicable to exercise of other rights are applicable to the right to child support
 A right holder should first obtain a title of execution. If the debtor does not voluntarily pay according to the title of
execution, the creditor have to resort to the court again for the execution of the right.
 A time-consuming process. It is often not worthwhile to resort to this process at all because the amount of money
at stake is small.
Examples of Title of Execution for Child Support Payment
 Court decision on child support payment (either a part of court divorce decision or an independent court decision)
 Protocol of mediation (court-annexed mediation)
 Protocol of the child support agreement prepared in the process of consensual divorce: this is now mandatory due
to the 2007 amendment of the Civil Act
 Child support payment agreement in the form of authentic instrument
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II. Reform of the Child Support Enforcement System in Korea in 2009
2. Background of Reform
B. Family Litigation Act
① Prior Disposition: When deemed specially necessary for the settlement of a case where there is a suit seeking
child support, or a request for an adjudication or a conciliation, the family court may, either ex officio or upon
request of a party, order the other party to make a periodic child support payment for a certain period.
② Performance Order: When a debtor obligated to pay child support pursuant to the title of execution fails to
perform the obligation, a family court may, upon request of the party concerned, order the person to perform the
obligation within a specific period.
 No coercive power. Its practical value is that a violation of the performance order could trigger imposition
of administrative fine and detention of the debtor.
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II. Reform of the Child Support Enforcement System in Korea in 2009
3. Additional Means to Secure Child Support Payment introduced in 2009
A. Protocol of the Child Support Agreement in the process of Consensual Divorce (Civil Act, Art. 836-2(5))
 Preparation of the protocol has become mandatory by the 2007 reform
 Protocol constitutes a title of execution (FLA, Art. 41)
B. “Direct Payment Order” for Child Support
•
•
•
A very effective means to secure stable payment of child support where the debtor is an employee or a person
receiving periodical wages
Assessed as having greatly reduced the burden of the creditor in executing her right
Upon application of a creditor (either a custodial parent or a minor child), a family court may issue a direct
payment order if the following conditions are satisfied (FLA, Art. 63-2(1))
 A creditor has a right to periodic child support payment
 A debtor fails to pay the child support not less than two times without any justifiable reasons
 A creditor has a title of execution for the right to child support
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II. Reform of the Child Support Enforcement System in Korea in 2009
3. Additional Means to Secure Child Support Payment introduced in 2009
B. “Direct Payment Order” for Child Support
•
•
•
Direct payment order is only available for the child support payment of minor children and not available for
other forms of maintenance.
If the amount of the wage is 1,500,000 Won or less, direct payment order as well as attachment are not
permitted.
A claim for child support payment has no preferential status. Is this appropriate?
•
A family court shall serve those orders to a debtor and an income tax withholding agent.
Legal Effect of Direct Payment Order:
 Attachment order + Garnishment order (Assignment order) under the Civil Execution Act : Claim for
wages is regarded as having been transferred to the creditor (FLA, Art. 63-2(2)).
What happens if the income tax withholding agent (namely the employer) goes bankrupt? Upon an application
of a creditor, a family court may cancel the direct payment order for the future (FLA, Art. 63-2(3)).
The debtor may make an immediate appeal against the direct payment order.
•
‘Income Withholding Program’ of the U.S.A: The Child Support Enforcement Amendment of 1984
•
•
•
10 / 38
II. Reform of the Child Support Enforcement System in Korea in 2009
3. Additional Means to Secure Child Support Payment introduced in 2009
C. Security Deposit Order and Lump-sum Payment Order
•
A direct payment order is not an effective means to secure a stable payment of child support where the debtor is
not an employee or a person receiving periodical wages, in which case, security deposit order and lump-sum
payment order play important roles if the court orders a periodic payment of child support.
•
Two types of security deposit order
 1st type: An order as an additional safeguard when the court orders the periodical payment of child support.
The order is issued ex officio, if the court finds it necessary.
 2nd type: An order issued when the debtor fails to pay child support without just grounds. application of the
creditor with a title of execution is necessary.
Object of Security: cash, negotiable instrument or bank bond or insurance company bond
Creditor has a pledge right upon the deposited security.
Sanctions against violation of a security deposit order: Lump-sum Payment Order and Administrative Fine
① Lump-sum payment order: Not a tile of execution. But its violation could trigger detention of the debtor.
② A violation of security deposit order could trigger imposition of administrative fine.
•
•
•
11 / 38
II. Reform of the Child Support Enforcement System in Korea in 2009
3. Additional Means to Secure Child Support Payment introduced in 2009
D. Order to submit Property List and Report Order
•
Order to submit a property list is also available under the Civil Enforcement Act. However, it presupposes the
title of execution. On the other hand, under the FLA, the court may order the non-custodial parent to submit a
property list only if a suit seeking child support payment is pending before the court.
•
Order to submit Property List and Sanctions against Refusal to Submit
 A family court may, when deeming specifically required for cases claiming child support for minor children,
order the relevant party to submit a property list stating her property status either ex officio or upon request
by the relevant party.
 Refusal of such order or a submission of false property list could trigger imposition of administrative fine.
Property Inquiry and Report and Sanctions against Refusal to Submit
 A family court may inquire the property under the title of the relevant party, either ex officio or upon
request by the relevant party, when deemed difficult to settle cases claiming child support for minor children
based only on the property list
 Refusal of submission or a submission of false materials could trigger imposition of administrative fine
•
12 / 38
III. Introduction of Child Support Calculation Table in 2012 and its
Revision in 2014
1. Child Support Act
• Preparation of Guidelines for Child Support Payment (Art. 5)
The Minister of Gender Equality and Family shall endeavor to prepare guidelines for calculating
child support payment so that courts can utilize them for making judgments and decisions, etc. Not
yet prepared.
2. Child Support Calculation Table of the Seoul Family Court
• Preparation of Guidelines for Child Support Payment (Art. 5)
• On May 31 2012, the Seoul Family Court has introduced its first child support calculation table with
reference to the “2012 The National Fertility and Family Health and Welfare Survey of the Korea
Institute for Health and Social Affairs”.
 Revised table has been published on May 30, 2014.
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III. Introduction of Child Support Calculation Table in 2012 and its
Revision in 2014
2. Child Support Calculation Table of the Seoul Family Court
Couples’
Aggregate
Income
Child’s
Age
From 0
under 3
From 3
under 6
From 6
under 12
Based on Korean Won (￦)
1,000 Won ≒ 9 US Dollars
0~1,990,000
2,000,000
~2,990,000
3,000,000
~3,990,000
4,000,000
~4,990,000
5,000,000
~5,990,000
6,000,000
~6,990,000
7,000,000~
Average
Average
Average
Average
Average
Average
Average
Range
Range
Range
Range
Range
Range
Range
526,000
635,000
761,000
906,000
1,012,000
1,106,000
1,526,000
200,000~589,000
590,000~707,000
708,000~833,000
834,000~958,000
959,000~1,059,000
1,060,000~1,315,000
1,306,000~
490,000
705,000
878,000
1,008,000
1,238,000
1,334,000
1,759,000
239,000~597,000
598,000~791,000
792,000~942,000
943,000~1,123,000
1,124,000~1,285,000
1,286,000~1,546,000
1,639,000~
533,000
708,000
902,000
1,059,000
1,202,000
1,371,000
1,906,000
185,000~620,000
621,000~804,000
805,000~980,000
981,000~1,130,000
1,131,000~1,286,000
1,287,000~1,638,000
1,639,000~
 Continued on the next slide
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III. Introduction of Child Support Calculation Table in 2012 and its
Revision in 2014
2. Child Support Calculation Table of the Seoul Family Court
Based on Korean Won (￦)
1,000 Won ≒ 9 US Dollars
0~1,990,000
2,000,000
~2,990,000
3,000,000
~3,990,000
4,000,000
~4,990,000
5,000,000
~5,990,000
6,000,000
~6,990,000
7,000,000~
Child’s
Age
Average
Average
Average
Average
Average
Average
Average
Range
Range
Range
Range
Range
Range
Range
From 12
under 15
604,000
755,000
947,000
1,095,000
1,305,000
1,520,000
2,046,000
313,000~679,000
680,000~851,000
852,000~1,021,000
1,022,000~1,200,000
1,201,000~1,412,000
1,413,000~1,782,000
1,783,000~
608,000
844,000
1,115,000
1,204,000
1,424,000
1,668,000
2,270,000
343,000~725,000
726,000~979,000
980,000~1,159,000
1,160,000~1,314,000
1,315,000~1,546,000
1,547,000~1,968,000
1,969,000~
959,000
1,185,000
1,303,000
1,361,000
1,728,000
1,974,000
2,221,000
314,000~1,072,000
1,073,000~1,244,000
1,245,000~1,331,000
1,332,000~1,544,000
1,545,000~1,851,000
1,852,000~2,097,000
2,098,000~
Aggregate
Income
From 15
under 18
From 18
under 21
• "Average" refers to the average support payment per child for families with two children. Courts shall take into
consideration the place of residence (+ for urban area, - for rural area), number of children (+ in the case of 1
child, - in the case of 3 or more children), medical expenses of huge amount, education expenses of huge amount,
and property situation of parents.
• Even if a parent has no asset at all she has to bear the minimum child support payment.
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III. Introduction of Child Support Calculation Table in 2012 and its
Revision in 2014
3. Court Practice on Determination of Child Support Payment
•
•
•
In the past calculation was left to the wide discretion of judges.
Child support calculation table not only assists judges in making proper decisions, but also facilitates the parties’ agreement by
providing concrete criteria.
Factors to be considered by Courts in determining the amount of Child Support Payment
 No need to apply the same standard for the future child support and the past child support
• ① Future child support payment
Absent the parties’ agreement, totality of the circumstances including level of living of the creditor, financial capability of the
debtor are considered. Costs for education deemed necessary for the minor creditor considering the age, talent and status,
etc. also fall in the category of the maintenance [Supreme Court Decision of 1986]
•
② Past child support : Supreme Court Decision of May 13, 1994, Docket No. Seu 21 (en banc)
 It would be too harsh and against the principles of good faith and the principle of equity if the court would order the
non-custodial parent to bear all the past child support payment actually borne by the custodial parent.
 A court should consider the background under which the custodial parent took custody of the child, the amount spent
for the custody, whether or not the non-custodial parent was aware of her support obligation and the time, nature of
the costs (ordinary costs or extraordinary and unavoidable costs of huge amount such as medical expenses).
 court may set the portion of allocation which it deems appropriate to be borne by the parents considering the property
situation, economic capability or fairness of sharing of the parents and other circumstances.
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III. Introduction of Child Support Calculation Table in 2012 and its
Revision in 2014
3. Court Practice on Determination of Child Support Payment
•
Extinctive prescription of the right to past child support payment?
 When a illegitimate child is acknowledged, the child’s right to child support payment is an abstract right
so that it is not subject to prescriptive period
 However, once the concrete content and extent of the right is fixed by the parties’ agreement or the court
decision, the creditor’s right will be subject to the extinctive prescription of 3 years (in the case of
creditor’s right fixed by parties’ agreement and payable by periodic payment) or the extinctive
prescription of 10 years (in the case of creditor’s right fixed by court decision), respectively.
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IV. Reform of the Child Support Enforcement System in Korea in 2015
1. Establishment of Assistance System to ensure Child Support Payment
•
① Promulgation of the “Act on Securing and Assisting of Child Support Payment” (“Child Support Act”) and
② Establishment of the Child Support Agency (“Child Support Agency”)
 It is not always easy for a creditor with a title of execution to enforce her rights. An agency designed to
assist her to exercise her rights is necessary.
A. Promulgation of the Child Support Act
•
•
Art. 3 (Custody Responsibility for Minor Children): (1) Irrespective of their marital status, father or mother
should procure the optimum growing environment so that the minor children can grow in healthy conditions in
all aspects of life, such as education and health.
Art. 4 (Duty of the State, etc.): State should assist parents so that they can raise their minor children in the
optimum environment. In addition, State and local governments should establish a special agency which will be
in charge of assisting custodial father or mother in securing child support payment and prepare plans for
providing necessary administrative and financial assistance measures.
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IV. Reform of the Child Support Enforcement System in Korea in 2015
1. Establishment of Assistance System to ensure Child Support Payment
B. Establishment of the Child Support Agency
•
•
One stop service providing assistance securing child support payment including information gathering, pre-litigation
request and filing a suit and post-litigation enforcement for child support payment, and monitoring of the process
 Candidates considered before the Establishment: existing agencies such as legal aid agencies or healthy family
assistance centers under the Ministry of Gender Equality and Family or a new agency?
Child Support Agency has been established in 2015 under the Korean Institute for Healthy Family, which is a legal entity
established under the Healthy Family Basic Act. However, the Child Support Agency as such is not a legal entity.
C. Major Roles of the Child Support Agency
•
•
Consultation as to child support and assistance for child support agreement
Child Support Agency can investigate the debtors’ domicile, place of employment, assets, income and finance of the debtor.
However, such investigation is subject to the debtor’s consent. In addition, Child Support Agency can request the relevant
authorities to provide information to the Child Support Agency.
 Some critics suggest that the power of the Child Support Agency should be strengthened. For example, it should be
allowed to obtain such information without the debtor’s consent if the creditor is already in possession of a title of
execution.
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IV. Reform of the Child Support Enforcement System in Korea in 2015
1. Establishment of Assistance System to ensure Child Support Payment
C. Major Roles of the Child Support Agency
•
Custodial parent can request the Child Support Agency to provide necessary assistance:
① in the first stage of obtaining a title of execution (including agreement of the parties and a court decision) and
② in the second stage of securing its enforcement if the debtor fails to make child support payment fixed by the title of
execution. Application for assistance for direct payment order, performance order, legal aid and collection of child support
payment. The president of the Child Support Agency can send to the debtor an official letter requesting child support payment.
•
Emergency advance child support payment for limited period is available if the following conditions are satisfied:
① the creditor has submitted an application for assistance for claim for child support payment and for securing its performance,
② the creditor has obtained a title of execution,
③ the welfare of the child is already, or is threatened to fall, in jeopardy as the result of the debtor’s failure to pay child support,
④ the creditor is not receiving the same protection under the National Basic Living Security Act and Emergency Aid and
Support Act. This shows the close linkage between the child support and the social security systems.
 No longer than 6 months. Extendable by 3 months if necessary to protect the welfare of the child
 President of the Child Support Agency can seek reimbursement from the debtor after emergency advance child support
payment is effected.
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IV. Reform of the Child Support Enforcement System in Korea in 2015
1. Establishment of Assistance System to ensure Child Support Payment
C. Major Roles of the Child Support Agency
•
Is the Credit Support Agency a public body under the 2007 Convention?
It is not an “administrative authority” under Art. 19(1) since it does not have the authority to make a decision having a
similar force and effect to a decision of a judicial authority on the same matter.
 Legal status of the Credit Support Agency needs to be clarified and further improved. Its role in international context
should also be addressed.
D. Enforcement Measures under Korean Law
•
•
2007 Convention, Art. 34 enumerates the following enforcement measures:
a) wage withholding, b) garnishment from bank accounts and other sources, c) deductions from social security payments,
d) lien on or forced sale of property, e) tax refund withholding, f) withholding or attachment of pension benefits, g) credit
bureau reporting, h) denial, suspension or revocation of various licenses (for example, driving licenses). i) the use of
mediation, conciliation or similar processes to bring about voluntary compliance.
Most of them are available under Korean law except for h). Administrative sanctions (such as rejection of issuance of
passport, suspension of driving license, prohibition of exit of Korea) and prohibition of use of credit card are not available.
21 / 38
V. International Collection of Child Support: Private International Law
• Kopino refers to children born to a Korean father and a Filipino mother.
 In the past many Korean men went to the Philippines for business or for learning English. No official
census on Kopino children, but estimates by activists groups range from 4,000 to 30,000.
• Typical cases of international recovery of child support
• Focus is on the private international law issues raised by the Kopino cases.
1. Two Recent Kopino Cases: Pending before the Appellate Courts
•
Recent two Korean lower court decisions in 2015 ordered Korean fathers to pay child support to Kopinos.
 In the Kopino decision in 2014 the court declared the father's acknowledgement of the paternity of
the child, but there was no order for child support payment.
•
Filipino mothers, who had been raising Kopinos in the Philippines, filed suits requiring the Korean court
① to declare the father's acknowledgement of the paternity of the child, ② to appoint her as the custodial
parent of the minor child, and ③ to order child support payment consisting of two parts, one seeking
lump-sum payment of past child support which should have been borne by the father, and the other
seeking monthly payment of future child support until the child attains the age of 19 years.
 Korean courts accepted the applications.
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V. International Collection of Child Support: Private International Law
1. Two Recent Kopino Cases: Pending before the Appellate Courts
• 1st Case: Suwon District Court Seongnam Branch Decision of May 28, 2015
‐ The Filipino mother, who had been raising the child alone in the Philippines, filed a suit requiring the
Korean court, inter alia, ① to declare the father's acknowledgement of the paternity of the child, ② to
appoint her as the custodian of the minor child and ③ to order child support payment. The Judge accepted
the first two applications and further ordered the Korean father to pay 20,000,000 won (US$18,000) as the
past child support payment and 500,000 won (US$450) per month until the Kopino child attains the age of
19 years.
• 2nd Case: Seoul Family Court, Decision of June 5, 2015
‐ The judge declared the father's acknowledgement of the paternity of the child, appointed the Filipino
mother as the custodian of the minor child, and ordered the Korean father to pay 300,000 won (US$270)
per month in child support. In determining the amount, the judge considered, inter alia, the cost of living in
the Philippines, the economic situation, the fact that the mother is focusing mainly on child-raising and is
likely to face difficulties finding stable employment in the future, and the amount of the money that the
father has already paid to the mother. However, the judge rejected the mother’s request for a lump-sum
payment of the child support on the ground that there is a risk of the money being used for other purposes.
23 / 38
V. International Collection of Child Support: Private International Law
1. Two Recent Kopino Cases: Pending before the Appellate Courts
• Even though the two decisions are pending before the appellate courts, they have a significant
meaning for Kopinos / Filipino mothers seeking child support from Korean fathers. Kopinos /
Filipino mothers used to have difficulty in filing a suit in Korea since they were not sure whether
Korean courts would accept the applications.
• Unfortunately, Korean courts applied Korean law to all the issues. They should have applied
Philippine law as to the appointment of custodian and child support payment.
• The amount of child support payment is somewhat lower than the ordinary amount in domestic
cases.
• Similar child support cases might arise for new Lai Dai Hans.
Lai Dai Han refers to children born to a Korean father and a Vietnamese mother during the Vietnam
War. New Lai Dai Hans refers to Lai Dai Hans born after Korea and Vietnam reestablished
diplomatic relation in 1992.
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V. International Collection of Child Support: Private International Law
2. International Jurisdiction
A. International Jurisdiction of Korea
•
Three claims
① claim for the father’s acknowledgment / ② claim for appointment as custodial parent
③ claim for child support payment
① Claim for Father's Acknowledgment: A child or her legal representative may file a suit against her father or mother seeking
acknowledgment (Civil Act, Art. 863).
② Claim for appointment of Custodial Parent: No doubt Korean courts have international jurisdiction. Although Art. 2, KPILA
declares the general principles only, the ‘actor sequitur forum rei’ principle is widely accepted in Korea. This is an
internationally widely accepted ground of jurisdiction.
KPILA, Art. 2 (1) The courts shall have international jurisdiction to adjudicate if the parties or the case in dispute has a
substantial connection with the Republic of Korea. In determining whether or not such substantial connection exists, the
courts shall follow the reasonable principles in conformity with the ideas underlying the allocation of international
jurisdiction to adjudicate. (2) The courts shall determine whether or not they have international jurisdiction to adjudicate by
reference to the provisions on jurisdiction of domestic laws, having full regard for the special characteristics of international
jurisdiction to adjudicate in light of the provisions of paragraph (1).
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V. International Collection of Child Support: Private International Law
2. International Jurisdiction
A. International Jurisdiction of Korea
③ Claim for Child Support Payment
‐ family court for the place where the defendant is domiciled has domestic territorial jurisdiction for the claim for
child support payment, which falls in the category of family non-contentious matters
‐ By analogy we could say that the court for the place where the defendant is domiciled or habitually resident has
international jurisdiction for the claim for child support payment.
‐ Unfortunately, no rules on direct jurisdiction on child support payment in 2007 Convention
“While many experts acknowledged the possible advantages of uniform rules, the preponderant view was that any practical
benefits to be derived from uniform rules were far outweighed by the cost of embarking on a long, complex and possibly futile
attempt to reach a consensus.” (Explanatory Report, para. 22)
B. Indirect International Jurisdiction
‐ important when the child support payment order of the Philippine court needs to be recognized and enforced in
Korea. To be discussed below in the context of the recognition and enforcement of Philippine court judgments
26 / 38
V. International Collection of Child Support: Private International Law
3. Applicable Law
• Three categories
① law applicable to the father's acknowledgment
② law applicable to the appointment as custodial parent (as well as the law applicable to who is the legal
representative) / ③ law applicable to child support payment
A. Law applicable to the Father’s Acknowledgement
KPILA, Art. 41
(1) The formation of a relationship between a parent and an illegitimate child shall be governed by the law of the mother’s lex
patriae at the time of the child’s birth. The formation of a parent and child relationship between the father and the child may
also be governed by the law of the father’s lex patriae at the time of the child’s birth or by the law of the child’s current
habitual residence.
(2) Acknowledgement may also be governed by the lex patriae of the person acknowledging the child in addition to the laws
set forth in paragraph (1).
‐ Art. 41(2) introducing another point of contact is to make acknowledgement easier. Accordingly, the laws of either
Korea or the Philippines could be the law applicable to the Korean father's acknowledgement in Kopino cases.
27 / 38
V. International Collection of Child Support: Private International Law
3. Applicable Law
B. Law applicable to the Appointment of Custodial Parent
• Appointment of custodial parent: matter to be governed by the law applicable to the legal relationship between
a parent and a child.
KPILA, Art. 45
A legal relationship between a parent and a child shall be governed by the child’s lex patriae if it is also the lex patriae
of both father and mother; in other cases it shall be governed by the law of the child’s habitual residence.
The rationale is to ensure that the law surrounding the parties be the law applicable to the issue. This also
corresponds to the conflict of laws interest of the parties.
• Accordingly, the law applicable to the appointment of custodial parent in Kopino cases is Philippine law.
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V. International Collection of Child Support: Private International Law
3. Applicable Law
C. Law applicable to Child Support Payment
• Connection of the maintenance obligations to the law of the State of the creditor’s habitual residence
Although Korea is not a contracting party to the Convention, Korea has reflected the rules of the 1973
Maintenance Convention into the KPILA (Art. 46).
• Rationale for this connection (Explanatory Report of the 2007 Protocol, paras. 37 & 38).
‐ It allows a determination of the existence and amount of the maintenance obligation with regard to the
legal and factual conditions of the social environment in the country where the creditor lives and engages in
most of her activities
‐ It also secures equal treatment among creditors living in the same country, regardless of nationality
‐ Given the increasing importance of public maintenance (i.e., social security payments), it is desirable for the
private and public maintenance to be governed by the same applicable law.
• KPILA, Art. 46(1) also provides for a subsidiary connection to the common nationality of the parties along the
lines of Art. 5 of the 1973 Maintenance Convention (favor alimenti).
• No renvoi (KPILA, Art. 9(2) follows Art. 3 of the 1973 Maintenance Convention).
• In conclusion, the law applicable to child custody payment in the Kopino cases shall be Philippine law.
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V. International Collection of Child Support: Private International Law
4. Nationality of the Kopinos
• Under the Nationality Act, a person whose father or mother is a national of Korea at the time of birth
shall be a national of Korea at birth.
• Acknowledgement has retrospective effect.
• However, where a person who is not a national of Korea (“foreigner”) is acknowledged by her father
or mother who is a national of Korea, and meets certain requirements, the person may acquire the
nationality of Korea upon reporting to the Minister of Justice. This principle applies to Kopinos.
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V. International Collection of Child Support: Private International Law
5. Recognition and Enforcement of Philippine Court Decisions ordering Child Support Payment
• In order for a foreign judgment to be recognized and enforced in Korea, it is necessary to obtain a judgment of
execution (exequatur) pursuant to Arts. 26 & 27 of the Civil Enforcement Act.
• Conditions for obtaining such a judgment of execution are as follows (Art 217 of Civil Procedure Act):
- the judgment or decision should be final, conclusive and no longer subject to ordinary review;
- the foreign court should have had international jurisdiction under the principles of international
jurisdiction laid down in Korean law or international treaties;
- the defendant who has lost the case should have been served with the complaint (or equivalent document)
and the summons or any orders in a lawful manner (other than public notice or similar methods) in advance
so as to allow sufficient time for preparation of her defense, or the defendant should have responded to the
suit without having been served;
- the recognition of the judgment should not be contrary to public policy of Korea; and
- there should be a guaranty of reciprocity, i.e., the concerned foreign courts recognize Korean judgments
under conditions not substantially different from those conditions under the CPA in any material respect
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V. International Collection of Child Support: Private International Law
5. Recognition and Enforcement of Philippine Court Decisions ordering Child Support Payment
• Indirect International Jurisdiction Requirement under the current KPILA
‐ Under Korean law, it is not clear whether the courts of the Philippines, namely the courts for the place where the
creditor is habitually resident have international jurisdiction.
‐ 2007 Convention, Art. 20(1)(c) sets forth the habitual residence of the maintenance creditor as a special ground
of jurisdiction. This is to protect the creditor as a weaker party.
‐ However, a Contracting State may make a reservation in respect of Art. 20(1)c). This is to accommodate some
States (in particular the U.S.A.) that the possibility of making a reservation in respect of this ground of jurisdiction
has been inserted in Art. 20(1).
‐ 1973 Hague Maintenance Convention (Enforcement)(Art. 7(1)). Brussels Ⅰ Regulation (Art. 5(2)) and the
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance obligations (Art. 3) provides for
such creditor friendly jurisdiction whereas there is no provision in the KPILA.
• Indirect International Jurisdiction Requirement under the Draft Amended KPILA
At present the Expert Committee established by the Ministry of Justice is working on the amendment of the KPILA.
Under the draft amendment, the court for the place where the creditor is habitually resident have jurisdiction. If such
amendment takes effect in the future, Filipino mothers and Kopinos will be able to file a suit in the Philippines and
decisions of the Philippine courts could satisfy the indirect international jurisdiction requirement.
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V. International Collection of Child Support: Private International Law
5. Recognition and Enforcement of Philippine Court Decisions ordering Child Support Payment
• Service Requirement
Hague Service Convention: Korea is a contracting party whereas the Philippines is not. The
complaint (or equivalent document) should be served to Korean father pursuant to the Act on
International Judicial Cooperation in Civil Matters through diplomatic channel.
• Reciprocity Requirement
Given the absence of precedent, it is not clear whether there exists a reciprocity between the two
countries. Conclusion could be drawn only after careful comparison between the requirements for
the recognition and enforcement of foreign judgments (in particular decisions on child support
payment) of the two countries.
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V. International Collection of Child Support: Private International Law
6. Changes to be brought by once Korea and the Philippines accede to the Hague Conventions
• 2007 Convention and the 2007 Protocol: Both Korea and the Philippines are not contracting parties.
• Benefits which would be available if both countries become parties to the 2007 Convention
① Effective access to administrative co-operation system through central authorities will be
available in dealing with international application (Art. 9).
② Effective access to procedures and free legal assistance for child support applications (Arts. 14
& 15).
③ Recognition and enforcement in Korea of Philippine decisions ordering child support payment
will be guaranteed (Art. 20) and vice versa.
• I do not expect to see the two countries to accede to the 2007 Convention and the 2007 Protocol in
the near future.
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VI. Hague Conference on Private International Law and Korea
• Korea has become a member of the Hague Conference in August 1997.
• Four Hague Conventions to which Korea is a contracting party
‐ Service Convention of 1965: effective from August 1, 2000 in Korea
‐ Evidence Convention of 1970: effective from February 12, 2012 in Korea
‐ Apostille Convention: effective from July 14, 2007 in Korea
‐ Child Abduction Convention: effective from March 1, 2013 in Korea
• Hague Conventions singed by Korea
‐ Adoption Convention: Korean Government is in the process of taking necessary measures to
ratify the Convention.
• Hague Conventions which Korea needs to accede to in the future?
 1996 Child Protection Convention
 2005 Choice of Court Agreements Convention
 2007 Convention and 2007 Protocol
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VII. Concluding Remarks
• Awareness of importance of child support is growing in Korea.
This is demonstrated by a series of recent reforms of Korean law in 2009 and
2015.
• Focus is on domestic context rather than international context.
• Korean community should pay more attention to the international context of
child support, including the 2007 Convention and the 2007 Protocol.
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Overview of Procedures securing Child Support
(Reforms in 2009)
Direct Payment Order
(Introduced in 2009)
Consensual Divorce
• Protocol of the child
support agreement
(introduced in 2009)
• Authentic Instrument
• Force of Attachment and
Assignment
• Administrative Fine for
Violation
Security Deposit Order
(Introduced in 2009)
• Administrative Fine for
Violation
Judicial Divorce
• Divorce Decision
• Child Support
Payment Decision
Then Existing Regime
Lump-Sum Payment
Order
(Introduced in 2009)
• Detention for
Violation (30 days or
less)
• Performance order
(administrative fine
increased to 10 Million
Korean Won)
• Provisional attachment
• Provisional disposition
• Prior disposition
37 / 38
Overview of Procedures securing Child Support
(Reforms in 2009 and 2015)
Direct Payment Order
(Introduced in 2009)
Consensual Divorce
• Protocol of the child
support agreement
(introduced in 2009)
• Authentic Instrument
• Force of Attachment and
Assignment
• Administrative Fine for
Violation
Security Deposit Order
(Introduced in 2009)
• Administrative Fine for
Violation
Judicial Divorce
• Divorce Decision
• Child Support
Payment Decision
Then Existing Regime
Lump-Sum Payment
Order
(Introduced in 2009)
• Detention for
Violation (30 days or
less)
Reforms in 2015
• Establishment of
Child Support Agency
• Emergency advance
child support
payment available
• Performance order
(administrative fine
increased to 10 Million
Korean Won)
• Provisional attachment
• Provisional disposition
• Prior disposition
38 / 38
Thank You!
khsuk@snu.ac.kr