[친생자관계부존재확인청구사건][하집1984(2),627]
Whether Article 844 of the Civil Act applies to the case where it is objectively evident that the wife is unable to capture a person of a father
Where it is objectively apparent that the birth by division is impossible because of the lack of living together between a father and his wife, the provisions of Article 844 of the Civil Act shall not apply even if the marital relationship remains in the form between a father and his wife.
Article 844 of the Civil Act
Claimant
appellees
Busan District Court (82D981 Judgment)
The appeal is dismissed.
Expenses for appeal shall be borne by the claimant.
The respondent confirms that the parental relation does not exist between the claimant and the other party 1.
The trial expenses shall be borne by the respondent.
The part of the original adjudication against the claimant shall be revoked.
The respondent confirms that there is no parental relation between the victim and the victim 1.
The trial expenses shall be borne by the respondent in both the first and second instances.
According to the evidence Nos. 1 and 2, which do not dispute the establishment of the defendant, the defendant is the father of the deceased non-party 1 and the claimant's mother, and is the person born between them, and is recorded on the family register. The claimant is the cause of the claim of this case. The defendant is not born between the plaintiff 1 and the claimant, but the defendant was born between the non-party 2 and the non-party 1, and the non-party 2 was born between the claimant and the non-party 2, and the defendant was born at the claimant's home for a long time from the time when the defendant gave birth to the defendant, and the defendant voluntarily reported the birth of a false amount born between the plaintiff 1 and the claimant. Accordingly, the respondent asserts that the defendant was the person born between the plaintiff 1 and the non-party 1, the husband of the claimant, and the non-party 1, the non-party 1, the non-party 1,
On the other hand, the defendant's birth report was made between the non-party 1 and the non-party 2, and the non-party 1 and the non-party 3, non-party 4, 5, 6, 7, and 4's testimony and the result of the defendant's personal examination in the court below, which are consistent with the above facts. The defendant's birth report was made between the non-party 1 and the non-party 2 and the non-party 9's non-party 1 and the non-party 2's non-party 2's non-party 9's non-party 9's non-party 2's non-party 9's non-party 9's non-party 1 and the non-party 2's non-party 1's non-party 9's non-party 2's non-party 9's non-party 1 and his non-party 2's non-party 1's non-party 9's non-party 2's non-party 9's family members.
As to this, the claimant and the plaintiff 2 completed the report of marriage between the plaintiff and the non-party 10 on December 15, 1949, and the marriage relation between them continued on July 30, 1966, which became final and conclusive. Accordingly, the respondent born on September 6, 1958 is presumed to be the non-party 10's husband before the reversal by the action of denial of paternity by Article 844 of the Civil Code, so the respondent should be presumed not to exist between the plaintiff and the non-party 1.
On the other hand, Article 844 of the Civil Act provides that the wife shall be presumed to be the father of the child born during the marriage. However, in cases where it is objectively acknowledged that the wife and the father are unable to capture by the father because of lack of living conditions between the wife and the wife, even if the wife continue to exist in the form of marriage between the wife and the father, the above provision shall not be applied. However, if the testimony of the witness at the court below and the witness at the court below at the court below at the 10 testimony, the non-party 2 and the non-party 10, as alleged above, remain in the family register until the marriage is divorced by a divorce trial on December 15, 1949, and the non-party 2 and the non-party 10 cannot be presumed to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have been able to have no more than 10 non-party 1 and 2.
Therefore, the claim of this case by the claimant seeking confirmation that the respondent does not have parental relation between the claimant and the non-party 1 shall be dismissed as without merit. The plaintiff's appeal of this case is just and without merit. Therefore, the plaintiff's appeal of this case is dismissed as the conclusion is without merit, and the costs of appeal are assessed against the losing claimant. It is so decided as per Disposition.
Judges Seog-ju (Presiding Judge)