[등록부정정결정에대한즉시항고][공2009하,1865]
In a case where a person who reported to be married with a female of a Chinese nationality as a ship of Korean nationality was convicted of a criminal fact, such as having reported the marriage to enter Korea without any intention to marry, and entered false facts in the official electronic records, the case holding that the above marriage is obvious that it is null and void due to lack of the agreement of the intention to marry, and thus, even without being judged null and void of marriage, the family relation register can be corrected with the permission of the family court pursuant to Article 105 of the Act on the Registration, etc. of Family Relationship.
In a case where a person who reported a marriage with a ship of Chinese nationality as having been married, was convicted of a criminal fact, such as having reported the marriage to enter Korea without any intention to marry, and entered false facts in the official electronic records, the case holding that the above marriage is obvious to be null and void due to lack of the agreement of the intention to marry, and thus, the family relation register can be corrected with the permission of the family court pursuant to Article 105 of the Act on the Registration, etc. of Family Relationship, even if it was not judged null and void.
[1] Articles 105 and 107 of the Act on the Registration, etc. of Family Relationship / [2] Articles 105 and 107 of the Act on the Registration, etc. of Family Relationship
Applicant and Principal of the case (Attorney Lee Sung-sung et al., Counsel for the plaintiff-appellant)
Busan District Court Order 2009B20 dated May 8, 2009
The order of the court below is reversed, and the case is remanded to Busan District Court Panel Division.
The grounds of reappeal are examined.
If a matter to be corrected in the family relations register has a significant impact on the family law or inheritance law, it can be corrected by a final judgment pursuant to Article 107 of the Act on the Registration, etc. of Family Relationship (hereinafter “the Act”). However, in the case of a matter to be entered in the family relations register concerning an act becoming effective due to a report, if it is clearly found that such act is null and void by a final criminal judgment (including a summary order), the family relations register may be corrected with the permission of the family court having jurisdiction over the place of registration of the principal of the case pursuant to Article 105 of the Act (see, e.g., Family Family Register Act).
According to the records, the Re-Appellant reported on December 1, 2003 to be married with the non-party, who is a ship of Chinese nationality, and the re-Appellant was prosecuted for committing a crime such as reporting of marriage to enter Korea for the purpose of non-party although he did not intend to marry, and making the non-party enter false facts in the public electronic records. On April 19, 2006, Busan District Court Decision 2005No3685 decided April 22, 2006 and the judgment dismissing the above facts was rendered on September 22, 2006. In light of the legal principles as seen earlier, the above marriage of the Re-Appellant is obviously null and void because it is evident that the above marriage of the non-party is not in conformity with the intention of marriage, so it is possible to correct the family relations register with the permission of the family court pursuant to Article 105 of the Act even if the marriage is not invalidated.
Nevertheless, the judgment of the court below that the family relation register can be corrected only by a final judgment is erroneous in the misapprehension of legal principles as to the correction of the family relation register, which affected the conclusion of the decision. The ground of reappeal pointing this out has merit.
Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Hong-hoon (Presiding Justice)