Korean Laws Concerning Adoption

DISCLAIMER: The writer is NOT licensed to practice law in Korea or anywhere other
than three of the fifty United States. This document does NOT constitute legal advice.
For reliable interpretation of the import of any of the quoted statues, it would be best to
consult with a competent attorney in South Korea.
I have compiled this document because I became aware of widespread anxiety and
misapprehension of legal procedures by non-Korean nationals adopting Korean children.

There are four specific Statutes which are involved in adoption in South Korea:
a. Act on Special Cases Concerning Adoption,
b. The Civil Act,
c. The Civil Procedure Act,
d. The Family Litigation Act.

This compilation was “current” as of November 1, 2015. Consult the Korean Law
website for any changes since then.

1. Act on Special Cases Concerning Adoption. This law is quite extensive so it is

better to go the site to review it completely.

Go to this site http://elaw.klri.re.kr/eng_service/lawTotalSearchABC.do?param=A

This is an official site of the government of Korea. You can view all of the laws of
Korea in either English or in Korean or with both languages onscreen.
Go to the cite and copy and paste this into the search box:
Act on Special Cases Concerning Adoption.

This is a no-brainer for the computer illiterate as there is only one search result.
Click on it and the entire statute is available for you to browse through.

Because the statute is quite extensive, it is not reproduced here, especially because you
can read it yourself wholly in English in an official translation by the Korean
government.

2. Civil Act

Pay particular attention to Articles 867, 869, and 870 which are specifically about
the jurisdiction of the Family Court to grant adoptions, the intention to adopt and the
circumstances in which the court will grant permission even if the parents do not consent
or cannot be located.

You can see the Articles at the same web site. Type in Civil Procedure Act and then
scroll down to the pertinent articles.

Article 867. Permission from Family Court for Adoption of Minor.

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 1) Anyone who intends to adopt a minor shall obtain permission from the Family
Court.”
2) The Family Court may choose not to grant permission under paragraph (1) for
the sake of the welfare of a minor to be adopted, taking into consideration the
situation of the minor's fostering, the motives of such adoption, the prospective
parents' competence for fostering the minor, and other circumstances.

(Article 868 was deleted in 1990)

Article 869 Declaration of Intent to Adopt

1) If a person to be adopted is a minor of at least 13 years of age, the adoption

shall be granted with the consent of his/her legal representative.

2) If a person to be adopted is a minor under 13 years of age, his/her legal

representative shall permit the adoption on his/her behalf.

3) In any of the following circumstances, the Family Court may permit adoption
under Article 867 (1) even if the consent under paragraph (1) or the permission
under (2) has not been obtained:

1) Where the legal representative refuses to give his/her consent or

permit without any just ground: Provided, That where the legal
representative is the person with parental rights, he/she shall fall
under any cause prescribed in Article 870 (2);

2) Where the consent or permission is unable to be obtained due to

the unknown whereabouts of the legal representative or by any
other cause.

4) In cases falling under paragraph (3) 1, the Family Court shall examine the
legal representative.

5) The consent under paragraph (1) or the permission under paragraph (2) may
be withdrawn before the adoption is permitted under Article 867 (1).

Writer’s note: Provision (5) is important -- consent for adoption can be withdrawn by
the parent or legal guardian ONLY BEFORE the court issued the Final Judgment. Once
the Final Judgment is issued, the parent or legal guardian’s change of heart can only be
expressed by filing an appeal and the appeal must be based on error or law or fact by the
court, not solely because the birth parent changed her mind.

Article 870 Parents’ Consent to Adoption of Minor

The adoption of a minor shall require consent of his/her parents: Provided, That
the same shall not apply in any of the following circumstances:

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 1) Where the parents have given consent under Article 869 (1) or
permission under Article 869 (2);

2) Where the parents have been declared to lose parental

authority;

3) Where he/she has not been able to obtain consent from his/her
parents due to the reasons such as the unknown whereabouts of the
parents, etc.

4) Even if the parents refuse to give their consent, the Family

Court may permit adoption under Article 867 (1) where any of the
following causes arises. In such cases, the Family Court shall examine the
parents:

1) If the parents have failed to perform their duty to foster

the child for at least three years;

2) If the parents have abused or deserted the child or

otherwise have severely impaired the welfare of the child.

3) The consent referred to in paragraph (1) may be

withdrawn before the permission for adoption is granted
under Article 867 (1).

3. Civil Procedure Act

Service

Under the law, the birth parents are entitled to notice of the initiation of the adoption
proceeding. Because the birth parents cannot be located sometimes, the issue of service
of court filings becomes important. When there is no known address for the birth parent,
the court allows service by public notice.

Public Notice is governed by

Article 194 Requirements for Service by Public Notice.

1) Where the domicile, etc. or the work place of a party is unknown, or
where it is impossible to follow the provisions of Article 191 in regard to a
service to be effected in a foreign country, or it is deemed to be ineffective even if
such provisions are followed, the presiding judge may, either ex officio or upon
request of parties, order a service by public notice.
2) For the request under paragraph (1), the reasons therefor shall be
vindicated.

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Article 195 Method of Service by Public Notice
Service by public notice shall be effected in such a manner that the junior
administrative officer, etc. of a court keeps the document to be served and posts
the reasons therefor on the court's bulletin board, or in such other manners as
prescribed by the Supreme Court Regulations.

Article 196 Taking of Effect of Service by Public Notice.

1) The first service by public notice shall take effect only with the lapse
of two weeks since the date of effecting under Article 195: Provided, That any
subsequent service by public notice to the same party shall take effect from the
day next to its effecting.
2) In cases of a service by public notice as to the service to be effected in
a foreign country, the period under the text of paragraph (1) shall be two months.
3) The period under paragraphs (1) and (2) shall not be shortened.

For procedural issues as to the Final Judgment, see Articles 198 and 199 and 498
and 499 of the Civil Procedure Act.

Article 198 Final Judgment

A court shall, after completion of its trial on litigation, render a final judgment.

Writer’s note: This mean at the very latest, the adoption Judgment must be entered five
months after the case was initially filed.

Article 199 Period of Pronouncing Final Judgment

Judgment shall be pronounced within five months from the date on which a
lawsuit has been filed: Provided, That in an appellate trial and in a trial on an
appeal to the Supreme Court, it shall be made within five months from the date on
which the record of proceedings has been received.

Article 498 Time When Judgment Becomes Final and Conclusive

Judgment shall be pronounced within five months from the date on which a
lawsuit has been filed: Provided, That in an appellate trial and in a trial on an
appeal to the Supreme Court, it shall be made within five months from the date on
which the record of proceedings has been received.

Article 499. Persons Delivering Certificate of Finality of Judgment

1) When a plaintiff or a defendant requests a certificate of the finality of

judgment, the junior administrative officer, etc. of the court of first instance shall
deliver the same pursuant to the judgment roll.

Writers’ note. The certificate of finality of judgment is issued after 14 days have elapsed
after the issuance of the Final Judgment. The legal effect of the certificate is that the
court is saying NO appeals can be filed by anyone.

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 2) When the litigation record is kept in the superior instance, the junior
administrative officer, etc. of the superior court shall deliver the certificate in
respect of only the portion of the judgment which has became final and
conclusive.

4. Family Litigation Act

The Family Court has jurisdiction over adoption.

Family Litigation Act Article 2 grants jurisdiction to the Family court over adoption as a
Category D case (“non Contentious case”)

Article 45-8 Procedure for Permission for Adoption

1. For adjudication to grant permission for adoption, the family court shall
hear the opinions from the following persons: Provided, That the same shall not
apply where the relevant person is unconscious or cannot express his/her own
opinion for other reasons:

1) A prospective foster child (referring only to where the prospective

foster child is at least 13 years of age);
2) A legal representative and guardian of a prospective foster child;
Writer’s note: This is why you will see that the agency will file a petition
to be appointed legal representative of the child to be adopted in the case
file.

3) Parents of a prospective foster child (referring to where consent of the

parents is required pursuant to Article 870 of the Civil Act);
Writer’s note: This is why you will see in the case file that there is a
written request to the birth parents to state their position.
4) A guardian of the parents of a prospective foster child;
5) A prospective foster parent; (This means you – that’s why you have to
appear personally in Family Court.)
6) An adult guardian of a prospective foster parent.

2. The family court may request the provision of relevant material

according to the following classifications, if deemed necessary for the welfare of
a prospective foster child. In such cases, if no just grounds exist, the institution,
upon receipt of a request to provide material, shall provide relevant materials:
(This is why you may see several “Modifications/ amendments filed by the social
agency with the court)

1) To verify the domicile and family relationship, etc. of a prospective

foster parent: A certified copy or abridged copy of resident registration
card, from the head of the relevant Si/Gun/Gu; (these are local government
divisions)
2) To verify the income of a prospective foster parent: Earned income data

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 and business income data from the Commissioner of the National Tax
Service;
3) To verify the criminal history of a prospective foster parent: criminal
history record from the Commissioner of the National Police Agency;
4) Scope deemed particularly necessary to verify whether a prospective
foster parent has a disease or mental handicap related to the ability of
fostering: Medical record data from the heads of the medical institutions
under the Medical Service Act or the head of National Health Insurance
Service under the National Health Insurance Act.

Of particular interest is the Appeal of the Final Judgment in an Adoption. The

appeal period is 14 days after the issuance of the Final Judgment under

Article 19 of the Family Litigation Act.

1) If a person is dissatisfied with a judgment of the family court, the
person may file an appeal within 14 days from the day an authentic copy of
judgment is served: Provided, That an appeal may be filed even before an
authentic copy of judgment is served.

2) The provisions concerning the proceedings of the first instance shall

apply mutatis mutandis to the proceedings of the court of appeals.

3) The court of appeals may reject an appeal even when the appeal is
well-grounded, if it is deemed that any revocation or alteration of the decision of
the first instance is contrary to the social justice and the ideology of equity, or is
not pertinent for the maintenance of family peace and morals and custom.

Writer’s note: There is NO SUCH THING AS A PRELIMINARY APPROVAL of an

adoption. The court grants a Final Judgment either granting permission to adopt or
denies permission. While in other civil litigation the court might issue a “provisional
judgment” there is no such provision in the Adoption statute or the Family Litigation
provisions concerning adoption.

An appeal is filed by a person. The court doesn’t change its mind on its own. The
appeal period starts to run on the day the Final Judgment is served on the interested
parties. So the manner of service may affect the appeal period if service is by public
notice, because service by public notice is effective two weeks after posting the notice.