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(영문) 대법원 2010. 3. 3.자 2009스133 결정
[자의성과본의변경허가][미간행]
Main Issues

The criteria and method for determining whether a case constitutes “when a person needs to change his/her performance and origin for his/her welfare” as prescribed in Article 781(6) of the Civil Act

[Reference Provisions]

Article 781(6) of the Civil Act

Reference Cases

Supreme Court Order 2009S23 dated December 11, 2009 (Gong2010Sang, 41)

Re-appellant

Re-appellant

Principal of the case

The principal of the case and one other

The order of the court below

Chuncheon District Court Order 2009B24 dated November 10, 2009

Text

The order of the court below shall be reversed, and the case shall be remanded to Chuncheon District Court Panel Division.

Reasons

The grounds of reappeal are examined.

1. The court below maintained the first instance court that rejected the claim of this case by the re-appellant, on the ground that the re-appellant did not have any difficulty in living or inconvenience in using the present surname of performance, or that the change of the present surname of performance may cause difficulty in school life and social relationship with the principal of this case.

2. However, we cannot accept the judgment of the court below for the following reasons.

Whether a case constitutes “when a person needs to change his/her surname and origin for his/her welfare” as prescribed in Article 781(6) of the Civil Act ought to be determined by taking into account the person’s age and maturity. In the event that a person’s sex and origin are not changed, the degree of disadvantages suffered in school life or social life due to external prejudice or misunderstanding related to his/her family members, etc., and subsequently, the degree of disadvantages suffered in the event that a sex and origin change is made with a person’s identity confusion or sexual intercourse with a relative father and sibling, etc., who are in the same sex and origin as a child, should be determined by taking into account the person’s age and maturity. In principle, the degree of disadvantages suffered in the event that a person’s sex and origin change is not deemed necessary to change his/her sex and origin for the welfare of a person beyond the degree of subjective and personal preference, and it is reasonable to consider the need to change the person’s sex and origin for the welfare, and to avoid or conceal any restriction on his/her sex and origin pursuant to Acts and subordinate statutes, and subordinate statutes, etc.

According to the records, the Re-Appellant was married with the non-Appellant 1, who was married with the non-Appellant 1, and living together with the case principal 2 (195 birth, 199) and the case principal 2 (199 birth, and his father's parental authority at the time of divorce was designated as non-applicant 1, but the non-Appellant 1 did not take care of the case principal without the support for non-applicant 1. The Re-Appellant did not know that the non-Appellant's sexual intercourse with the non-Appellant 2 and shared the rearing of the case's family life with the non-applicant 2. The non-applicant's sexual intercourse with the non-applicant 2. The non-applicant's sexual intercourse with the non-applicant 1's sexual intercourse with the non-applicant 2. The non-applicant's sexual intercourse with the non-applicant 1's sexual intercourse with his child's family life after his parent's divorce, and the non-resident 2's sexual anxiety with his own family 2.

As above, the re-appellant who can be seen as one of the persons with parental authority and cares of the principals of this case, filed a request for change of his surname on behalf of the principal of this case, and at least the age to express his/her will as to such change, although he/she is longer a minor, and the parties to the claim of this case agree to change his/her father and non-party 1. The non-applicant 2 is actually a father of the principal of this case, who raises the principal of this case, and lives together with one family with his/her father of this case. The non-applicant 2's result of change of his/her father and non-party 2's result is recognized as being the same as that of the principal of this case, and it is difficult to view that the change of his/her family life will be more stable than that of the principal of this case and the non-party 2 of this case's result of change of his/her family life, and it is also difficult to see that the change of his/her family life will cause any inconvenience and inconvenience to school life.

Nevertheless, the lower court maintained the first instance court’s rejection of the instant claim on the grounds that the need to change the present claim is not recognized. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence and by misapprehending the legal doctrine on permission to change the present claim. The grounds for reappeal pointing this out are

3. Therefore, the order of the court below shall be reversed, and the case shall be 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.

Justices Kim Nung-hwan (Presiding Justice)

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