[소유권이전등기말소][집24(3)민,227;공1976.12.15.(550),9490]
Whether the effect on the parent-child relationship is on the cancellation of the registration on the family register of a person recognized only by the permission to correct the family register of an illegal court
If “A”, etc. of a deceased born out of wedlock was reported as the father of a family during marriage by the deceased and registered in the family register as they were, it would have come into force as recognition. The mere fact that the registration of the family register injury such as “A,” etc. was cancelled only by the permission of the court for correction of the family register in an unlawful manner without the procedure of cancellation by a lawful correction judgment after that, cannot affect the relationship between the deceased and “
Plaintiff 1 and one other
[Defendant-Appellant] 5 et al., Counsel for defendant-appellant-appellant]
Seoul High Court Decision 75Na1739 delivered on July 22, 1976
Of the original judgment, the part concerning the annexed Forms 2 and 3 in the original judgment shall be reversed.
This part of the case is remanded to the Seoul High Court.
The defendant's remaining appeals are dismissed.
The costs of appeal to the Supreme Court are assessed against the defendant, etc.
The defendant et al.'s attorney shall judge the first third part of the grounds of appeal.
According to the original judgment, the lower court determined to the effect that Plaintiff 2 was the inheritor of Australia, recognizing the fact that Plaintiff 2 was a child due to Nonparty 2’s recognition.
However, according to the transcript of the family register in the records, the non-party deceased's name was strong, which was recorded as a person in the marriage except for the plaintiff 2, and according to Article 985 of the Civil Code, among lineal descendants of the same parent, etc., in the family registry inheritance, the first priority should be given to the child in the marriage. If the above penology is not a child in the marriage but a child in the marriage, the court below should have established its reasoning. Without any other reasons, the court below's decision that the plaintiff 2 is a family heir must be justified and there is an error in violation of the provisions of the Civil Code on the Family Inheritance in Australia, or in violation of the Civil Code on the Family Register of Australia. Thus, the judgment of the court below's illegality is justified as to the first list of the court below's judgment, since it did not affect the conclusion of the judgment on the first list of the court below's judgment, it did not affect the conclusion of the judgment on the second and third list of the original judgment, but it should be reversed without any other grounds for appeal.
The original judgment shall be judged by comprehensively taking into account other grounds for appeal as to the First List.
The court below's stated evidence that the plaintiff et al. was born out of the marriage of the deceased and registered in the family register as they were registered in the non-party deceased's family register upon the report of the plaintiff et al. as the father of the non-party deceased's child during the marriage, and that the registration of the plaintiff et al.'s family register correction cannot affect the parent-child relationship between the non-party and the plaintiff et al. just because the registration of the plaintiff et al.'s family register correction was cancelled without due procedure for cancellation by a legitimate correction judgment, the court's decision that the court below's decision that the non-party's report of birth did not violate the rules of evidence or misunderstanding the legal principles on the family register and inheritance rights, and the court's decision that the non-party's report of birth takes effect as the legal evaluation of the facts that the plaintiff's father's child is the father of the non-party deceased's child. Thus, the plaintiff's claim for this case on the premise that the plaintiff is the father of the non-party deceased.
Justices Dra-ro (Presiding Judge)