1. Summary of the judgment below

According to the reasoning of the judgment of the court below, the court below acknowledged on December 5, 1967, the non-party deceased (the deceased)'s husband and wife under law after reporting the marriage, but decided to adopt the defendant with a capacity of five months after birth at the end of 1982, while the deceased was born, and he did not take care of his own house after obtaining the consent of the above non-party's adoption, and registered the defendant with his birth report as his father and the plaintiff on July 20, 198, and the above deceased's death on February 9, 1995, as well as the above deceased's establishment of a adoptive relation with the above adoption, and if there is no other substantial condition for adoption, it can be viewed that the above adoption was not established in the court for the reason that the birth report was not established in the form of a child, and if there was no other substantive condition for adoption, it can be viewed that the defendant's adoption was not established under the Civil Act, and that there was no other requirement for adoption revocation.

2. Judgment on the grounds of appeal

On the first ground for appeal

In light of the records, the fact-finding by the court below that the above deceased's birth report against the defendant as an adoption intention is just and acceptable, and there is no violation of the rules of evidence against the rules of evidence as pointed out in the grounds of appeal.

The grounds of appeal disputing this issue cannot be accepted.

On the second ground for appeal

According to the Civil Act (amended by Act No. 4199, Jan. 13, 190; hereinafter referred to as the "Civil Act") which was enforced against the defendant at the time of the report of the birth against the defendant, any person who has the wife may not be adopted either jointly or jointly (Article 874(1)). However, if a joint adoption is not possible due to the absence of the wife or any other reason, one side may be adopted in the name of both husband and wife (Article 874(2)). If the adoption is in violation of this provision, the wife may claim before the court for annulment of the adoption (Article 884 subparag. 1, 88, and 894). In light of the fact that the adoption is a legal act between a couple and a couple, even if it is a joint adoption between the husband and the wife, it is reasonable that the joint adoption between the husband and the wife satisfies the above requirements, as well as the general adoption requirements provided for in the Civil Act.

Thus, if a person with a wife accepts a report of adoption made in the name of both parties with the intention of the married couple in making the adoption, the adoption is null and void as there is no agreement between the parties who are one of the general requirements of adoption between the wife and the person to be adopted, except in cases where it is impossible to make joint adoption due to the absence of the wife or other reasons (Article 883 subparag. 1 of the Civil Act). On the other hand, even if the person to be adopted satisfies all the general requirements of adoption between the wife and the person to be adopted, even if the person to be adopted fails to meet the requirements of adoption, the wife may claim the revocation of the adoption, but the adoption between them remains null and void unless the revocation is made.

However, the report of birth of the natural father as the intention of the parties to establish the adoptive parent relationship, and if the adoption satisfies all the substantial requirements, the adoption takes effect even if it is erroneous in the form of the adoption, and the adoptive parent relationship has the same contents as the parental relation in law, except for those that can be resolved by the dissolution of the adoptive relation. Thus, in this case, the false report of birth of the natural father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's mother's father's father's father's father's father's father's father's father's father's father's father's father's father's father's mother's father's father's father's mother'

In this case, if the part of the claim for confirmation of paternity between the deceased and the defendant as to the claim for confirmation of existence of paternity between the deceased and the defendant was based on the facts above, the above deceased's intent to establish a adoptive relationship with the defendant, which led to the birth report of the natural father, and the adoption took effect upon the fulfillment of the practical requirements for adoption. Thus, as long as the plaintiff, who is the deceased's spouse, did not exercise the right of revocation within a lawful period of time pursuant to Articles 88 and 894 of the Civil Act, barring any special circumstance, it is justifiable for the court below to dismiss the claim for confirmation of existence of paternity, which denies the existence of the above legal parent-child relationship, on the ground that it is unlawful (see the above 85Meu86, supra), and there

However, with respect to the part of the claim for confirmation of existence of paternity between the plaintiff and the defendant, unless the adoption agreement was reached between the plaintiff and the defendant as seen above but it cannot be jointly made due to the absence of the wife or any other reason, the adoption shall not take effect upon the birth report alone between the plaintiff and the defendant. Thus, the court below should have examined whether the above deceased's birth report constituted the adoption at the time of the absence of the wife or other reason, and decided whether the adoption was effective upon the above birth report. However, although the above birth report alone did not lead to the erroneous determination that the adoption took effect between the plaintiff and the defendant. Accordingly, the court below erred by misapprehending the legal principles on the joint adoption or the invalidation or cancellation of adoption between the husband and the defendant and by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

Ultimately, there is no reason to challenge the denial of paternity between the deceased and the defendant in the above assertion in the grounds of appeal, but there is a reason to challenge the denial of paternity between the plaintiff and the defendant.

3. Conclusion

Therefore, among the judgment below, the part concerning the claim for confirmation of paternity between the plaintiff and the defendant is reversed, and this part of the case is remanded to the court below, and the plaintiff's remaining 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 Seo Sung-sung (Presiding Justice)