[친생자관계부존재확인][집41(2)특,563;공1993.10.1.(953),2424]
The method of disputing the validity of recognition by the report of birth of a natural father
A lawsuit of objection against recognition or a lawsuit of nullity of recognition is a lawsuit to dispute its validity when the biological father or the biological mother recognizes a person other than a marriage by reporting of recognition pursuant to the provisions of Article 855(1) of the Civil Act and Article 60 of the Family Register Act. In order to dispute the parent-child relationship registered on the family register by the general report of birth without being subject to the recognition report pursuant to the provisions of the above Articles of the above Acts, a lawsuit of confirmation of existence of paternity provided for in Article 865 of the Civil Act shall be filed separately from each of the above lawsuits. If a report of birth of the natural father has been filed against a person other than a marriage pursuant to Article 62 of the Family Register Act, the report shall be deemed to have the effect of recognition, but if the report is not a report of recognition, but a lawsuit of confirmation of existence of paternity is to exclude the appearance of the father-child relationship due to such report.
Article 62 of the Family Register Act, Articles 865 and 862 of the Civil Act, Article 2 of the Family Litigation Act
Claimant 1 et al., Counsel for the plaintiff-appellant-appellee and four others
[Defendant-Appellant] Plaintiff 1 et al.
Seoul High Court Decision 90Reu2659 delivered on May 24, 1991
The appeal is dismissed.
The costs of appeal shall be borne by the respondent.
We examine the grounds of appeal.
On the first ground for appeal
According to the provisions of Article 862 of the Civil Act, a person who has an objection against affiliation or other interested persons may file a lawsuit of demurrer against affiliation. According to the relevant provisions of the former Personnel Litigation Act (amended by January 1, 1991) and the former Family Trial Act (amended by January 1, 1991), which was in force at the time of the lawsuit of this case, a party of affiliation, his legal representative or relative may file a lawsuit of nullity of affiliation separately from the above lawsuit (the current Family Litigation Act also applies to the current Family Litigation Act), and a lawsuit of nullity of affiliation or a lawsuit of nullity of affiliation is for dispute against the recognition of a person other than marriage by reporting affiliation by the birth or the birth or the birth or the birth or the birth or the birth or the child's recognition by reporting affiliation pursuant to the provisions of Article 855(1) of the Civil Act and Article 60 of the Family Register Act, for the purpose of disputing the parent-child relationship registered in the family register by the general report of affiliation pursuant to the provisions of each of the above Acts, separate from the above litigation shall be confirmed of Article 865 of the Civil Act.
Article 62 of the Family Register Act provides that when the father of a child born out of wedlock has reported the birth of the child, the report shall be deemed to have the effect of recognition. However, if the report is not known, but rather intends to exclude the appearance of the father of the child born out of the report, it is necessary to file a lawsuit to confirm the existence of the father of the child born out of the family register.
The precedents of party members who need a theory of lawsuit do not conflict with such opinions.
The decision of the court below which accepted the claim for confirmation of paternity or existence of paternity of this case filed by the deceased's wife and the donee against the respondent whose name is entered in the deceased's family register upon the report of birth against the person outside of wedlock is just and just, and in the above case, the lawsuit of this case is not asserted that the limitation period has expired, on the premise that the claimant shall file a lawsuit of objection against the recognition under Article 862 of the Civil Act.
On the second ground for appeal
The fact-finding by the court below that there is no biological parent between the claimant and the respondent is justified in light of the records, and there is no illegality that points out the theory of the lawsuit. The arguments are groundless.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)