[친생자관계부존재확인][공1988.6.1.(825),911]
A. Scope of presumption of paternity under Article 844 of the Civil Act
(b) Method of denial of presumption of paternity.
(c) The starting point of counting the period of release from a lawsuit of denial of paternity;
(a) The person who was born in marriage shall be presumed to be the father, except when there are circumstances such as where one side comes abroad for a long time or where the wife is living separately due to de facto divorce, etc. where the wife is unable to capture the father due to lack of the father’s appearance;
B. If a person who is presumed to be the father of a child pursuant to Article 844 of the Civil Act intends to deny the denial of the father of a child, he/she shall only file an action of denial of paternity as stipulated in Articles 846 and 847 of the Civil Act, and may not seek an adjudication of denial of paternity as stipulated in Article 865(1) of the Civil Act.
C. The term "one year of release of the action of denial of paternity" means the period from the date when the child became aware of the birth, and does not relate to whether the child was not his child.
a.B. Article 844(b) of the Civil Code, Article 846 and Article 865(1)(b) of the Civil Code. Article 847 of the Civil Code
A. (B) Supreme Court en banc Decision 82Meu59 delivered on July 12, 1983; Supreme Court Decision 84Meu84 delivered on September 25, 1984; Supreme Court Decision 84Meu109 delivered on January 29, 1985; Supreme Court Decision 79Meu4 delivered on May 22, 1979
Claimant
appellees
Seoul High Court Decision 87Reu214 delivered on July 20, 1987
The appeal is dismissed.
The costs of appeal shall be borne by the appellant.
The grounds of appeal are examined.
Except in cases where one side of the married couple takes part in a foreign country over a long period of time or where the wife is living separately due to de facto divorce, it shall be interpreted that the wife who was born during marriage is presumed to be the father (see Supreme Court Decision 82Meu59 delivered on July 12, 1983). In this case, according to the records, the claimant and the non-Claimant are sufficient to recognize the facts of birth of the respondent while having his legal status as the husband and wife, while they were living together with the respondent, the respondent shall be presumed to be the father of the claimant. In such a case, if the claimant intends to deny his father's paternity, the respondent shall file a lawsuit of denial of paternity as stipulated in Articles 846 and 847 of the Civil Act, and it shall not be allowed to seek a trial on confirmation of non-existence of paternity as stipulated in Article 865 (1) of the Civil Act (see Supreme Court Decision 84Meu109 delivered on January 29, 1985).
In this regard, the court below's rejection of the appeal of this case by deeming the claimant's claim of this case as the action of denial of paternity after the period of filing the appeal has expired is just and there is no error of law such as misunderstanding of legal principles as to presumption of paternity, or misunderstanding of legal principles as to the period of filing the action of denial of paternity
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Choi Jae-ho (Presiding Justice)