[소유권이전등기말소][집24(1)민,209;공1976.5.15.(536),9102]
Whether the recognition is effective where the father of a child born out of wedlock has reported the birth of the child born out of wedlock.
A recognition under Article 855 of the Civil Act is a system that establishes the parent-child relationship for a child born out of wedlock, who is de facto father or mother, that is, the father or mother's own will, and the other person cannot be recognized by any means. Thus, even if the father or the father reported the birth of a child born out of wedlock, it is not effective as to the child born out of wedlock, and is legally null and void.
The deceased plaintiff-appellant of the lawsuit
Defendant-Appellant Park Byung-chul et al., Counsel for the defendant-appellant
Seoul High Court Decision 74Na1298 delivered on April 11, 1975
The appeal shall be dismissed. The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
Affiliation as stipulated in Article 855 of the Civil Act means a system which creates a parent-child relationship with a child born out of wedlock under the law of the father or mother of the child born at will, in cases where the father or mother of the child is recognized as his own child, so in this case (whether a child is a child) the de facto father or mother shall be based on his own will, i.e., the father or mother, and any other method shall not be recognized, and it shall not be deemed that there exists a custom that the head of the household may make a stamp in place of his family at the time of the Gu Resident Law.
Therefore, the judgment of the court below is just to conclude that even if the defendant was reported on February 20, 1959 and the above two persons were reported on April 18, 1951, the marriage between the above non-party 1 (the deemed to be null and void by a report of disappearance on August 20, 1954) and the non-party 2 who died on April 18, 1951, the recognition of the defendant who was the non-party 1 and the non-party 1, who was the de facto father of the defendant, was not effective (see Supreme Court Decision 71Da2446 delivered on January 31, 1972). The purport of this decision is that since the marriage report between the above non-party 1 and the non-party 2 becomes null and void by the report of disappearance, it cannot be said that the report of birth was not made due to the intention of the above non-party 1.
In addition, the fact that the parent-child relationship is not determined by the statement on the family register, and is not a relation of father-child relationship on the family register, if it is not in fact, there may not be legal parent-child relationship (see Supreme Court Decision 64Da112 delivered on September 22, 1964). Thus, there is a report of birth as mentioned above, and there is no legal parent-child relationship between Non-party 1 and the defendant.
Even if the report of birth on the family register is made with a sign of the effect of recognition on the family register, the recognition without such intention shall be deemed to be null and void under the law without any validity. Therefore, such recognition may be asserted by anyone without going through the adjudication and other procedures to confirm the nullity.
Under this view, the decision of the court below that there is no parent-child relationship between the non-party 1 and the defendant is just and there is no debate on the action that attacks the original time from the opposite point of view.
Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yang Byung-ho (Presiding Justice)