Child Abduction Law in Korea is a developing area of Korean law because of Korea’s Criminal and Family Law’s interaction with the recently ratified Hague Convention on the Civil Aspect of International Child Abduction and recent noted issues that have been covered in the local and international press. Please note this area of law in Korea is developing and Korea’s child abduction jurisprudence is quickly developing and local law is necessary to consider with the interaction between the laws of the jurisdiction of the Mother and Father.
One case sheds light on international child abduction law in Korea. A Vietnamese Mother and a Korean Father with marriage difficulties were planning to divorce. The Vietnamese Mother removed the child of the couple to Vietnam and returned to Korea for employment purposes. The child was moved to Vietnam to be raised by the family of the Vietnamese Mother.
The couple divorced after the alleged “abduction” of the child and the Mother took the child from the Father without the permission of the Father, but without force, but by “deception” (surreptitiously taking the child). The court awarded custody of the child to the Mother. The Father filed a criminal case against the mother for child abduction. For an article on Korean Divorce please see: Divorce in Korea.
The Mother was adjudged by the Supreme Court to be not guilty of abducting the Child (for the reasons stated below).
Criminal Law of Child Abduction in Korea
Article 287 (Kidnapping or Abduction of Minors)
A person who obtains and maintains a minor under the control of his/hers or a third person by means of the threat, use of force or other forms of coercion, or by means of fraud, deception or enticement shall be punished by imprisonment for not more than ten years.
Article 288 (Kidnapping, Abduction, etc. for Purpose of Indecent Acts, etc.)
(3) The preceding paragraph shall apply to a person who obtains and maintains another under the control of his/hers or a third person by means of the threat, use of force or other forms of coercion, or by means of fraud, deception or enticement for the purpose of transporting him/her out of the Republic of Korea, or a person who transports such a victim out of the Republic of Korea.
International Child Abduction
The Mother should, if the Court reads the law on its face, to be guilty of abducting the child by “deception.” However, the Supreme Court of Korea has not strictly interpreted this statute to the detriment of the “totality of the circumstances” and if, at the time of the choice of the mother to “abduct” the child, the “best interest of the child” was to remove the child from the household (Supreme Court Decision 2010Do14328 Decided June 20, 2013).
Thus, criminal abduction is determined by Korean courts by considering the totality of relevant circumstances (i.e., the purpose and intent of abduction, situation at the time of abduction, means and method of abduction, and victim’s condition).
Thus, in short, if a parent removes a child from a home without resulting in assault or threat and raises the child without harm to the child, barring special circumstances such as abusing custodial rights, this act shall, typically, not constitute the crime of abducting a child under the Criminal Act, even if neither a court order nor the other parent’s consent existed at the time of taking the child from the other parent.
For more information, please call us or contact us via email at: SeanHayes@ipglegal.com
Known for his proactive street-smart advice & non-conflicted advocacy, NY Attorney Sean Hayes works with leading retired Korean judges, prosecutors and experienced Korean attorneys in leading contentious and transactional matters in Asia. First non-Korean lawyer employed by the Korean Court System. SeanHayes@ipglegal.com
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