Whether the report of birth made by the wife after the father’s death of a child born out of wedlock can be deemed as the father’s recognition (negative)

A natural father's relationship between a child born out of wedlock and his/her father's legal father's relationship is solely based on recognition, and even if his/her wife was born between his/her father and his/her father's birth report after the death, it cannot be effective as such recognition.

Article 855 of the Civil Act

[Judgment of the court below]

[Defendant-Appellant] Defendant 1 and 1 others, Counsel for defendant-appellant-appellant

Daegu High Court Decision 84Na56 delivered on April 25, 1984

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The defendants' attorney's grounds of appeal are examined.

According to the reasoning of the judgment below, the court below, based on the evidence adopted by the court below, acknowledged that the plaintiff was a person born on September 6, 1958 between the non-party 1 and the non-party 2, and that the non-party 3, his wife after the non-party 1's death, was registered on the family register after the birth report of the natural father born between the plaintiff 1 and the non-party 1, and accepted the plaintiff's claim of this case on the premise that the plaintiff was jointly inherited the real estate of this case, which he owned by the non-party 1's father due to his death.

However, the legal father's relationship between a child born out of wedlock and his father's father's legal father's relationship is solely based on recognition, and even if his wife reported the birth of the plaintiff after the death of the non-party 1 as determined by the court below, it cannot be effective as a recognition by the non-party 1, and there is no other evidence to recognize that the non-party 1 was the plaintiff on the record.

However, the judgment of the court below that held the plaintiff as the property inheritor of the non-party 1 on the premise that his father-child relationship is established is erroneous in the misapprehension of legal principles as to the establishment of the parent-child relationship between the non-party 1 and the non-party 1, or failing to exhaust all necessary deliberations, and this constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases Concerning

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court which is the original court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices O Sung-sung(Presiding Justice)