In case where a lineal descendant exists on the deceased, the effect of the selection of ex post facto adopted children

Even if there are lineal descendants of the deceased, the selection of the adopted person after the adoption is only the cause of the revocation of adoption, and cannot be deemed as an adoption of the invalidity of the adoption. [The en banc Decision: 74.09Meu243.243Meu8 decided by this decision]

Articles 867 and 884 of the Civil Act

Plaintiff

Attorney Kang Young-soo et al., Counsel for defendant 1 and four others

Daegu District Court Decision 76Na475 delivered on June 22, 1977

The original judgment is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal by the defendant et al. are examined.

According to the reasoning of the judgment of the court below, when Defendant 2 died without his husband on September 28, 1960, the court below recognized Defendant 5 as de facto adoption of the above deceased. On August 21, 1963, when Defendant 2 moved to another place, Defendant 1, Defendant 3, and Defendant 4, who is his father of the above deceased, and let Defendant 5 take the initiative of the above deceased, the above defendant 2 donated the above land inherited to Defendant 5, and the plaintiff purchased KRW 49,000 on behalf of the above defendant 5 from the above defendant 20 on February 20, 1964 (the defendant 5 was a minor, and the non-party 2, his father, who was his father, was to receive the donation of this land or to sell it, exercised his right of representation, and the act of selecting the above non-party 5 as a person with parental authority under the Civil Act still becomes invalid as the person with parental authority under the present Civil Act regardless of the fact that the above act is valid as the person with parental authority under the above defendant 2.

According to the records, Defendant 5 was selected as the post-child of the deceased non-party 1 on January 11, 1958 and then registered as the post-child of the deceased non-party 1 on the family register injury after being reported by Defendant 2 on January 28, 1964. The adoption of the above two after the death of the deceased constitutes a violation of Article 867 of the Civil Act, or a separate case where the report on the selection of the above post-adopted child constitutes a cause of invalidation under Article 883 of the same Act. Unless otherwise, the adoption after the death of the deceased constitutes a cause of invalidation under Article 884 of the same Act, and it cannot be said that the adoption after the death of the above child can be revoked by Article 884 of the same Act, and it cannot be said that the adoption after the death of the above person with parental authority or the legal representative of the above non-party 2 was invalid after the above adoption. Thus, the court below erred by misapprehending the legal principles as to the above adoption of the defendant 25.

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

Justices Kim Jong-young (Presiding Justice)