beta
(영문) 대법원 1982. 3. 9. 선고 81므52 판결

[분가취소확인][공1982.6.1.(681),469]

Main Issues

(a) Whether a request for revocation of a decentralization is appropriate (negative);

(b) A scheme for the simplification of double protection;

Summary of Judgment

A. The claim against the head of a family for the revocation of a branch family made after a person whose family name was entered in a double family register due to double branch family register is unlawful on the ground that there is no legal basis.

(b) A person whose family name is entered in a double family register due to double separation shall be able to correct the family register in accordance with Article 120 of the Family Register Act in order to simplify, if the double separation does not affect the family relation by the cancellation of the entry in the family register after the separation.

[Reference Provisions]

(a) Article 2 of the Family Litigation Act;

Reference Cases

Supreme Court en banc Order 81S15 Dated October 10, 1981

Appellant, appellant

Claimant

Respondent-Appellee

appellees

original decision

Seoul High Court Decision 81Reu64 delivered on June 29, 1981

Text

The appeal is dismissed.

The costs of an appeal shall be borne by the appellant.

Reasons

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below held that the appeal of this case is unlawful on the ground that the person whose name was entered in double family register due to double separation under the Family Trial Act does not have a legal ground for filing a claim for revocation of the branch family register after the family register against the head of family. In light of the provisions of Article 2 of the Family Trial Act, the decision of the court below is just and it cannot be said that there was an error of law in misapprehension of legal principles or inconsistent reasoning. Thus, the appeal is without merit

However, the judgment of the court below ruled that the request for a trial of this case is without a legal basis under the Family Litigation Act, and even if the purpose of the request for a trial of this case is to simplify double family register by cancelling double family register after double family register, double family register unification has a significant effect on the inheritance law between the head of family and his family members, so the above final judgment should be obtained as provided in Article 123 of the Family Register Act, not by directly correcting the family register, but by means of evidence for clarifying the corrected matters, it does not constitute a matter subject to the above judgment to seek cancellation of double family register by cancelling the whole of the family register registered after the defendant's direct entry, and it does not constitute a matter subject to the above judgment because it does not affect the result of the trial of this case, but by reporting the double family register of this case to correct double family register register in the way that it does not have a significant influence on the family register of this case by the claimant and the family members of this case, and as long as it does not have a new effect on the family register register of this case, it shall not be accompanied by two separate family register register register register register register as evidence.

Article 120 of the Family Register Act provides that any entry in the family register shall not be legally permitted, or if it is recognized that there is an error or omission in the entry, an interested person may apply for the correction of the family register with the permission of the family court having jurisdiction over the place where the family register is located. Article 121 of the Family Register Act provides that a person who has filed a lawsuit shall apply for the correction of the family register with the permission of the family court having jurisdiction over the place where the report is located, if it is obvious that the act is invalid after entering in the family register with respect to the act which takes effect by the report, the person who has filed the report or the person who has filed the report may apply for the correction of the family register with the permission of the family court having jurisdiction over the place where the family register is located. Article 123 of the Family Register Act provides that a person who has filed a lawsuit shall apply for the correction of the family register within one month from the day on which the judgment becomes final and conclusive, and it shall be understood that the law is declared that the correction of the family register should be made by the method of the correction.

Since the Family Register Act takes the principle of the formation of one-day family register, it is obvious that double-defense is not legally permitted, so if it does not affect the above influence on the status relationship, it is added to the opinion of the party member who can correct the family register in accordance with the provision of Article 120 of the Family Register Act for the simplification of this effect. The appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench at the expense of the losing party.

Justices Lee Il-young (Presiding Justice)

심급 사건
-서울고등법원 1981.6.29.선고 81르64
본문참조조문