Constitutionality of Article 844 Section 2 of the Civil Act

[27-1(B) KCCR 107, 2013Hun-Ma623, April 30, 2015]

In this case, the Constitutional Court held that the part of “the one who was born within 300 days of the termination of marriage” in Article 844 Section 2 of the Civil Act, which presumes a child who was born within 300 days of the termination of the marriage to be a child of the mother’s ex-husband, violates the mother’s right to personality in family and social life and the fundamental right related to marriage and family life, as deviating the limit of legislator’s formative power.

Background of the Case

(1) Complainant married Yoo, ○-Sul on April 25, 2005 and reached a mutual agreement to divorce on December 19, 2011. After obtaining confirmation of their divorce from the family court, they filed an attested copy of the confirmation with their local Gu-office. Later, the complainant lived with Song, ○-Min and gave birth to a daughter on October 22, 2012.

(2) The complainant visited the local Gu- Office and tried to register the birth of her daughter with the name of Song, ○-Yoon. But she was told that pursuant to Article 844 of the Civil Act which presumed a child who was born within 300 days of the termination of the marriage to be a child of the mother’s ex-husband, her daughter would be registered as Yoo, ○-Yoon instead of Song, ○-Yoon, as she would be registered as the legitimate child of her ex-husband in the Family Register. In order to correct this, she needed to initiate a paternity suit to deny the relationship. Upon this, the complainant decided to put off the birth registration.

(3) The DNA test performed by the Department of Forensic Medicine, Seoul National University confirmed that Song, ○-Yoon was the

biological child of Song, ○-Min, and Song, ○-Min wanted to be legally acknowledged as her father.

(4) The complainant filed this constitutional complaint on September 5, 2013, arguing that Article 844 of the Civil Act violated her fundamental rights.

Provision at Issue

The subject matter of this case is whether the part “the one who was born within 300 days of the termination of marriage” in Article 844 Section 2 of the Civil Act (enacted by Act No. 471 on February 22, 1958; hereinafter, the Instant Provision) violates the Constitution, infringing upon the complainant’s fundamental rights. The provision at issue in this case is as follows:

Provision at Issue

Civil Act (enacted by Act No. 471 on February 22, 1958)

Article 844 (Presumption as Husband’s Child) (2) A child born after two hundred days from the day when the marriage was formed or bornwithin three hundred days from the day when the matrimonial relation was terminated, shall be presumed to have been conceived during the marriage.

Summary of the Decision

1. Whether the Instant Provision infringes on the mother’s right to personality in family and social life and the fundamental right related to marriage and family life, deviating the limit of legislator’s formative power

The presumption of paternity under the Instant Provision has a stronger effect compared to ordinary presumption, thereby exerting greater influence on the legal status of the interested parties. Therefore, despite the fact that enacting a law related to the presumption of paternity issue is basically within the realm of legislative discretion, if such a law prescribes an excessively unreasonable standard for statutory presumption of paternity or excessively limited ways to escape the clutches of the paternity presumption, thereby establishing filiation not corresponding to actual blood ties, the law is in violation of the Constitution, exceeding the limit of legislative discretion.

The criterion of ‘within 300 days of the termination of marriage’ itself as the standard of presumption of paternity under the Instant Provision does not seem cross the line of legislative discretion. Despite the reasonableness of the standard itself, however, failure to provide legal exceptions for the ‘300 days’ standard without reflecting social changes since the enactment of the Instant Provision should be considered as exceeding the limit of legislative discretion, as it places excessive emphasis only on legal stability to be achieved by the rapid conclusion of parent-child relationship, while turning a blind eye to the reality of true blood relationship.

The Instant Provision has been effective without undergoing a single revision since the enactment of the Civil Act in 1958. When the Instant Provision was enacted, divorce and remarriage were not common in our society and woman’s remarriage was statutorily prohibited for 6 months after her divorce. Given the circumstances, it was reasonable at that time to presume the one who was born within 300 days of termination of marriage to be a child of the mother’s ex-husband without exception and to allow exceptional cases to be solved only through filing a suit to deny paternity.

Nowadays, however, divorce and remarriage are not rare anymore and the six month ban on women’s remarriage after divorce was discarded by the revision of the Civil Act in 2005. Also, the introduction of a cooling off period before divorce and mandatory arbitration prolonged

the whole process from the breakdown of marriage to final divorce. As a result, the possibility for a woman to give birth to a child of its biological father, not her ex-husband, within 300 days from the termination of marriage has increased, and the development in DNA paternity testing techniques makes it possible to medically clarify whether two individuals are biologically parent and child.

Nevertheless, due to the Instant Provision, even when it is clear that a child born within 300 days after the termination of marriage is not a biological child of the ex-husband or even when the ex-husband does not want to establish paternity and the child’s biological father wants to be legally acknowledged as father, the child is forced to be registered as the legitimate child of the ex-husband in the Family Register, which can be changed only through a strict paternity suit to deny the relationship. As a result, the Instant Provision unduly places burden on the divorced mother and her ex-husband to respectively make their own new families and becomes a stumbling block to recover the real blood relationship between a biological father and his child.

As such, failing to reflect the social, legal and technical changes since the enactment of the Civil Act, the Instant Provision, which forces a paternity suit by presuming the child as a biological child of the ex-husband without exception even when a child was born after the termination of marriage and the biological father wants to be legally acknowledged as father, imposes unreasonably excessive restriction. Therefore, the Instant Provision infringes on the mother’s right to personality in family and social life and the fundamental right related to marriage and family life, deviating the limit of legislator’s formative power.

2. Decision of non-compatibility with the Constitution

Declaring the Instant Provision unconstitutional would cause a vacuum in the legal status of a child who was born within 300 days after the termination of marriage as the presumption of paternity ceases to be

effective right after the decision. And it is basically within the realm of the legislative discretion to make decisions on the standard and elements to improve the unconstitutionality of the Instant Provision. Therefore, we declare the decision of non-compatibility with the Constitution and order the Instant Provision to be effective until the legislature amends it.

Summary of Dissenting Opinion by Three Justices

The Instant Provision presumes paternity of a child who was born after the termination of marriage. But any presumption naturally entails some possibility of being different from real fact, and therefore, if an exception is provided to reverse such presumption, the law should be regarded as being properly enacted, not going beyond the limit of legislative discretion.

The scope of application of the Instant Provision includes: first, when no one disputes the presumption of paternity; second, when it is strongly expected that a third party, not the ex-husband, would be the child’s biological father; and third, when it is unclear who would be the biological father. The reasoning of the majority opinion, however, is limitedly applicable to the second case, but for other cases, it will result in neglecting legal vacuum.

As the presumption of paternity is closely and systemically related to the paternity suit, in order to solve the problems presented by the majority opinion, the subject matter of review in this case should have been extended to include Article 846 and Article 847 of the Civil Act that stipulate the paternity suit to deny father-child relationship, thereby the Court could have reviewed whether the pseudo legislative omission to provide for any better solution to turn over the presumption was constitutional or not. The Instant Provision itself is legitimate in terms of the fact that it fills up the vacuum of legal protection as it provides a child with a stable legal status and therefore, it does not violate the mother’s fundamental rights.

Considering the prevalent practice of the law makers, we would like to

point out that the majority’s decision not to specify the exact time limit of legislative revision, although understanding the majority’s agonizing contemplation on the legal vacuum, is not a proper way to announce a decision of non-conformity with the Constitution.