Case on the Statute of Limitation for Action of Denial of Paternity

[9-1 KCCR 193, 95Hun-Ka14 et al., March 27, 1997]

A. Background of the Case

In this case, the Constitutional Court delivered a decision of nonconformity to the Constitution for Article 847 Section 1 of the Civil Act, which limits the period in which a father can dispute his biological fatherhood to one year after the birth of the child for the sake of stability in family relations.

Article 847 Section 1 of the Civil Act stipulates that a person presumed to be a father under Article 844 of the Civil Act must file a lawsuit to dispute his parenthood “within one year becoming aware of the birth of the child.”

The petitioner filed a suit to dispute his paternity of a child born from his spouse after the period of limitation set by Article 847 Section 1 of the Civil Act, and motioned to request constitutional review of the provision to the trial court, which then requested the constitutional review of the provision.

B. Summary of the Decision

The Constitutional Court delivered a decision of nonconformity to the Constitution for Article 847 Section 1 of the Civil Act, which imposes a limitation on the period for filing a lawsuit denying paternity, for the following reasons.

The length of the period of limitation on such lawsuit, in principle, falls under legislative discretion. However, if the period of limitation is too short or irrational so that the statutory period expires before the father is convinced of his paternity, making it very difficult or effectively impossible to file the suit, thereby severely narrowing his opportunity to deny the father-child relationship, then such a limitation goes beyond legislative discretion and is unconstitutional.

The aforementioned statutory period of limitation is very unfair to the father, because it starts accruing from the date when the father was made aware of the birth, regardless of when the father first learned of reasons to dispute paternity.

Further, the traditional notion that fidelity is observed during marriage has largely changed, and since many babies are born in hospitals and other specialized institutions, one cannot exclude the chance of babies being switched at birth. Thus, there exists a heightening need to grant a father the right to deny his fatherhood. Also, the Korean people still place great importance on ancestry and maintain a strong attachment to hereditary ties. Given such circumstances,

limiting the period in which to file a legal dispute to one year from the date of knowing the birth is too short.

Therefore, the aforementioned provision departs from the scope of legislative discretion, violating Article 10 of the Constitution that guarantees human dignity and worth and the right to pursue happiness, and Article 36 Section 1 that guarantees a family life and marriage.

Provided, an unqualified simple decision of unconstitutionality for the aforementioned provision may create a vacuum in law, and the Court issued a decision of nonconformity to the Constitution.

C. Aftermath of the Case

Following this decision, on March 31, 2005, the National Assembly by Act No. 7427 amended the language of Article 847 of the Civil Act, extending those eligible to bring an action of denial of paternity from “husband” to “husband or wife,” and extending the period from "within one year of learning the birth" to "within two years from the day he or she becomes aware of the cause of the action.”

Meanwhile, the Constitutional Court, on April 30, 2015, delivered a decision of nonconformity to the Constitution for the part of Article 844 Section 2 of the Civil Act that presumed a child born within three hundred days of the termination of a marriage to be the child of the wife’s ex-husband.

The number of divorces and remarriages has risen greatly, the period of prohibition of remarriage for females was revoked in the 2005 amendment to the Civil Act, and the duration between the breakdown of a marriage and actual legal divorce has become much longer, thanks to the adoption of legal delay before divorce and the conciliation-prepositive principle. Thus, it has become much more likely than in the past for a female to conceive a child by a father who is not her ex-husband, and give birth within three hundred days of the termination of her marriage. Also, it has become much easier to confirm paternity with the development of DNA testing. The provision on the presumption of paternity makes it difficult to deny paternity without bringing an action of denial of paternity, for it presumes that a child born within three hundred days of the termination of a marriage is the natural child of the ex-husband without exception, failing to reflect the change in circumstances in the social, legal and medical arenas since the enactment of the Civil Act. Thus, the Court declared that this infringed upon the right to personality based on family relations, and the

fundamental rights to marriage and family life (2013Hun-Ma623; dissenting opinion of three Justices).