(영문) 서울고법 1991. 7. 23. 선고 91르483 제1특별부판결 : 상고[인지및부양료청구사건][하집1991(2),527]
(a) Whether the father of a child is presumed to be an impossible reproductive technology;
(b) Confirmation of the paternity or existence of a person presumed to be the natural father of another person, and propriety of litigation over a claim for recognition.
A. The presumption of paternity pursuant to Article 844(1) of the Civil Act is only limited to cases where it is apparent that the wife is unable to identify the father due to lack of the agreement, such as where one side of the husband or wife is living abroad over a long time or the husband or wife is living separately due to de facto divorce. As long as the husband or wife living together, the presumption is not possible reproductive.
B. As for a person presumed to have the paternity of another person, the denial of the paternity can be made only by the action of denial of paternity, no stamps cannot be made before the adjudication of denial of paternity becomes final and conclusive, and even if the adjudication of denial of paternity is final and conclusive, the above presumption is not reversed by the res judicata of the adjudication, and thus, the lawsuit of claim for recognition is unlawful.
(a)Paragraph 1 of article 844 of the Civil Code; (b) article 863 and article 865, Paragraph 1 of article 865 of the Civil Code;
1.
Supreme Court en banc Decision 82Meu59 Decided July 12, 1983 (Gong712No.71259 Decided April 25, 1988) and 87Meu73 Decided April 25, 198 (Gong1988, 911)
○○ et al.
○○
Seoul Family Court (89div75693) of the first instance court
The part of the original adjudication against the respondent shall be revoked.
The appellant's appeal of this case dismissed the part of the claim for recognition, and the monetary payment claim portion is dismissed.
Litigation costs shall be borne by all the petitioners in the first and second instances.
The claimant is recognized as the natural father of the appellee.
From August 1989 to December 1992, 1992, the respondent shall pay to the Claimant ○ by the rate of KRW 3,000,000 per month from August 1, 1989 to December 1992, with the amount of KRW 3,00,000 per month from August 1, 1989 to December 1996 to the Claimant ○○.
The trial expenses shall be borne by the respondent.
Among the original adjudication, the part against the respondent shall be revoked, and the corresponding claimant's claim of this case shall be dismissed.
Litigation costs shall be borne by all the petitioners in the first and second instances.
The claimant asserts that the claimant is the natural father of the respondent who was born between the respondent and the non-claim 1, and at the same time, sought the payment of support fees until adult age. The respondent asserts that the claimant's claim is unlawful since the non-claim 1, who was the mother, was born during marriage with the non-claim 2, and thus, the plaintiff is presumed to be the natural father of the non-claim 2. Therefore, unless the presumption of the natural relation is broken by a final judgment of the action of denial of paternity under Articles 846 and 847 of the Civil Act, unless the presumption of the natural relation is broken down, the claimant may not make a claim for recognition against the respondent. However, since there is no final judgment of denial of paternity, the claim of this case is unlawful.
Therefore, comprehensively taking account of the whole purport of pleading in the statement of evidence Nos. 1-1, 7-6, 9-5, 1-1, and 3,5,17 of evidence Nos. 1-7 without dispute over establishment, the claimant non-party Nos. 1-6, 7-5, and 1-3,17 (each statement of statement) shall be presumed to be the non-party Nos. 1-2, 84, and the plaintiff shall be presumed to be the non-party Nos. 846, 86, 847 (1) of the Civil Act, and the plaintiff shall be presumed to be the non-party Nos. 1-2, 6, 86, 86, 847 of the Civil Act, and the presumption of denial of paternity shall not be presumed to be the non-party No. 2's husband or wife's denial of paternity over the period of time before the denial of paternity becomes final.
Meanwhile, comprehensively taking account of the whole purport of arguments in the statement of evidence Nos. 2-1 (trial), 2 (Delivery Certification) and 3 (Settlement Certification) without dispute over the establishment, the claimant non-party 1 filed a lawsuit against the claimant and the non-party 2 on April 26, 1989 to confirm that the existence of the paternity relation does not exist between the claimant and the non-party 2 from the same support on April 26, 1989. Although the above judgment became final and conclusive on May 21, 1989, the claimant can be presumed to be the non-party 1 and the non-party 2 who were born while living in the marriage and presumed to be the paternity of the non-party 1 and the non-party 2. In such a case, even if the non-party 2 were not reproductive, the presumption of paternity relation cannot be reversed by the judgment of denial of paternity pursuant to Articles 846 and 847 of the Civil Act, and the presumption of paternity relation cannot be reversed by the aforementioned judgment.
Therefore, the presumption of paternity between the claimant and the non-party 2 is still maintained and not reversed. Therefore, the part of the claimant's claim for recognition of this case, which was premised on the reversal of such presumption, is unlawful and dismissed, and the part of the claimant's claim for support of this case, which was premised on the presumption that the defendant's parental relation exists with the defendant, shall be dismissed as there is no reason. The original judgment is unfair as a different conclusion. Since the defendant's appeal is reasonable, the part against the defendant in the original judgment is revoked, and the defendant's appeal against it is reasonable, the plaintiff's appeal for recognition of this case shall be dismissed, and the defendant's claim for support fees shall be dismissed, and the costs of lawsuit shall be borne by the
Judges Go Jin (Presiding Judge)