涉外後見に關する硏究 = On the Protection of Minors and Adults in International Situations

다국어 초록 (Multilingual Abstract)

The material law of the protection of the rights of minors and adults is changing drastically. In the protection of minors, it has become public charaerer in content these days(especially guardianship). Also, rhe idea co proteer the rights of me child has spread worldwide after the 1980 United Nations Convendon. In the proteCtion of adults, it implies the incapacity that protect the adults person and property that is deprevated of civil rights and taken by similar measures. But in rhe advanced nation which is in the face of the senior citizen`` 5 society, the incapacity has changed rO the custody system which support and protect the seniot and the mentally deranged person in accordance with rhe capacity to intent for cbe considering the need to improve protection, although that system is different from the countries in legal sysrems and measures. This dearly exemplifies the ``Becreuungsgeserz``, which was enforced on January 1st, 1992 in Germany and the Amendment of Gvil Code, which was enforced on Aptil 1st, 2000 in Japan, etc. la this paper, the protection of minors and adults in international situations is reviewed as to how to initiate changes at the stage of Private Internarional Law in Hague Conventions, Germany and Japan. 1. Hague Conventions There are some Hague conventions such as tbe Convention of S October 1961 on the concerning the powers of authorities and the law applicable in respeCt of the protection of infants. Especially the measures for the guardianship of minors in international situations are definitely dealed In parental responsibility by the Convention of 19 October 1996 on the jurisdiction, applicable law. recognition, enforcement and co-opetarion in respect of parental responsibility and measures for the protection of children. This convention applies to the whole extenr of the procedure which is needed to confirm rh at the beSt intetests of the child are to be a primary consideration. And the Hague Convention of 13 January 2000 on the international protection of adults applies to the prorection in internarional situations of adults who, by reason of an impairment of insufficiency of rheir personal faculties, are not in a position to protect their own interest. Under the conventions of 1996 and 2000, rhe judicial or administrative authorities of the Coocracring State of the habitual residence of the child and adult have jurisdiaion to take over the protection of their person and property. The authorities iD exercising their jurisdiction shall apply their own law in principle. The measures raken by the authorities shall be recognized by the law of all other Coocracting States, with a few exceptions. And a Conrracting State shall designate a Cenrral Authotity to discharge the duties. which are imposed by the Conveorion on such authorities. 2. Germany For the protection of minors in international situations. Germany catlfied and entered into rhe Convention of 1961. So it has fill the important to le of in parental-child relarionship enclosed guardianship. Eilifuhri1!1gsgesetz ZIt11l Bilrgerti,hen Gesetzbu,he (EGBGB) Arr.24 is significant in custody(BetreIJung) and care{Pflegschaft) of adulrs. Personal law is applied in the commencement, alreration and termination of the custody and care, and the cootent of the measures to be taken for the legal care(guetzti,he Pflegschaft). Lex fori is applied in content which takes the measures of Custody and Care. Custodian can be placed by internal law for the foreigner who has a habitual residence, or if nor residence in Germany. Under rbe Gesetz iiber die Al1getegenheiten der freiwiliigen Gerichtsbarkeit (FGG), char For the protection of minors in international situations. Germany catlfied and entered into rhe Convention of 1961. So it has fill the important to le of in parental-child relarionship enclosed guardianship. Eilifuhri1!1gsgesetz ZIt11l Bilrgerti,hen Gesetzbu,he (EGBGB) Arr.24 is significant in custody(BetreIJung) and care{Pflegschaft) of adulrs. Personal law is applied in the commencement, alreration and termination of the custody and care, and the cootent of the measures to be taken for the legal care(guetzti,he Pflegschaft). Lex fori is applied in content which takes the measures of Custody and Care. Custodian can be placed by internal law for the foreigner who has a habitual residence, or if nor residence in Germany. Under rbe Gesetz iiber die Al1getegenheiten der freiwiliigen Gerichtsbarkeit (FGG), char means the voluntary jurisdiccioo procedure rule, the court in Germany exercises its jurisdiction witb equality in national countty, habirual residence and the place which is needed to care(FGG Arr.3S b). But it doesn``t mean tbat only Germany exercises its jurisdiction. This is meaningful in the recognition of protection measures such as guardianship, custody and care which was taken in foreign countries(FGG Art.1G a). And it is established to lmernational cooperare(FGG ArrA7). 3. Japan Under the Horei. the guardianship(Art.24 I) and the cause of the decision to commence the guardianship of adults applies to the petsonal law(ArtA I ). In the latter, the effect of such decision applies to the Law of the place wbich is decided (Art A I ). But thete are some excepcions as follow: In concerning the cause of decision to commence the guardianship of adultS, internal law with personal Law applies to the foreigner who has habitual residence, or residence in Japan (ArtA IJ). And when the guardian was not named even though there is a cause to commence the guardianship undet the personal law, and when the court in Japan decided to commence rhe guardianship, Japan``s law must be applied(Arr.24 IT ). The applicable law in guardianship applies to in various subjeCtS such as the cause of commencement, organ of guardianship, rights and duties of the guardian, designation and appoinrmem for the supervisor of the guardian, termination of guardianship, etc. But there is no rules for the jurisdiction and the recognition of the measures for the guardianship which was taken in a foreign country. In a final analysis, It can be said that the habitual residence has been become important for the protection of minors and aduLts at Least in the aspect of jurisdiction and applicable law, by reasons of the limit of personal law dOctrine. As concerns the protection of adults, it``s noticiable that it can be protected by internal law fot the foreigner who has a habitual residence, or if nOt residence in Germany and Japan.