2019uu92 Confirmation of Denial or the existence of paternity

A

Section B.

Busan Family Court Decision 2018Ddan5320 decided March 26, 2019

November 20, 2019

January 8, 2020

1. Revocation of the judgment of the first instance, and the lawsuit of this case shall be dismissed.

1. Purport of claim

We confirm that there is no parental relation between the plaintiff and the defendant. 2. purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Whether the lawsuit of this case is legitimate

A. Relevant legal principles

A report of birth of a natural parent as the intent of the parties to establish a adoptive parent-child relationship, and if the actual requirements of adoption are met, the adoption shall take effect even if the adoption were committed in the form thereof, and, except that the adoptive parent-child relationship may be resolved by the dissolution of the adoptive relation, it shall have the same contents as that of the adoptive parent-child relationship. In this case, a false report of birth of a natural parent-child shall perform the function of a report of adoption through the public disclosure of the adoptive parent-child relationship, which is a legal parent-child relationship. However, in order to determine that the actual requirements of adoption are met, there must be an agreement of adoption, but a person under the age of 15 shall not be a legal representative's abortion, such as the existence or extension of the adoptive parent-child relationship, and the adoption shall not necessarily entail any ground for invalidation of adoption as prescribed in any subparagraph of Article 883 of the Civil Act, such as care, custody, and custody, and shall not take effect if the adoption does not meet the above requirements (see, e.g., Supreme Court Decision 2009Meu9, Mar. 1119,

(b) Fact of recognition;

1) The Plaintiff had a sexual intercourse with the Defendant’s mother, but later, the Defendant’s mother was pregnant to find the Defendant, and the Plaintiff’s defect as the Plaintiff’s child was known that he was not his natural father, and the Defendant was born on October 1, 1969, where about 10 years after the Defendant was born, and the Defendant got the Defendant to remain her natural father.

2) The Plaintiff paid child support and educational expenses to his mother who was actually growing the Defendant, and around 1983, the Defendant attended the marriage ceremony of the Defendant and Byung. The Defendant, upon the death of the Plaintiff’s wife around 1999, was living at the Plaintiff’s direction. Around about 10 years, the Plaintiff her mother’s intention was gathered on behalf of the Plaintiff, and was in charge of the her mother’s will on behalf of the Plaintiff.

3) The Defendant paid a traffic accident agreement on behalf of the Plaintiff or purchased a vehicle on behalf of the Plaintiff, and when the fees for the use of the state-owned land residing by the Plaintiff were in arrears, the Defendant paid a fee for ten years. The Plaintiff paid the full amount of medical expenses when the Plaintiff was hospitalized due to brain flasing or waste collection, as well as the Defendant’s wife provided nursing the Plaintiff. Furthermore, when the Plaintiff’s non-child is married, the Defendant provided a 5 million won under the name of money for congratulations, and did not demand reimbursement even if the Plaintiff borrowed a large amount of money at his request, and did not demand reimbursement.

4) The Plaintiff did not talk that the Defendant and other relatives, including the Defendant, were not his natural father for about 60 years from the date of birth to the time of filing the instant lawsuit.

5) As a result of genetic testing in 2018, the Plaintiff and the Defendant did not establish a biological relationship.

【Ground of recognition】 Evidence Nos. 1 and 2, Evidence Nos. 1 through 4, and the purport of the whole testimony and pleading of the party-trial witness

C. Determination

Inasmuch as there is no dispute between the Plaintiff and the Defendant that there is no biological parental relation, this study examines whether the adoptive parent relationship between the Plaintiff and the Defendant was established in light of the legal principles as seen earlier. First, the birth report of the natural father itself can be seen as the circumstance in which the adoption is inferred (see, e.g., Supreme Court Decision 2009Meu4099, Mar. 11, 2010). The Plaintiff, despite being aware that the Defendant was not one’s natural father, directly reported the birth of the Defendant for about 10 years after he was born, paid the Defendant child support and education expenses to the Defendant, and the Defendant was in charge of the husband’s child support and education as his mother. Until now, the Plaintiff had an intention to adopt and the adoptive parent relationship with the Defendant for more than 50 years, and there is no need to establish the adoption relationship between the Plaintiff and the adoptive parent, and even if the Plaintiff did not have any specific reason to establish the adoption relationship as the adoptive parent relationship with the Defendant, the Plaintiff still did not have an adoptive parent relationship with the Plaintiff.

2. Conclusion

Thus, the lawsuit of this case shall be dismissed in an unlawful manner, and it is unfair to conclude the judgment of the court of first instance with different conclusions, so the judgment of the court of first instance shall be revoked and dismissed.

The presiding judge shall be appointed from among the judges;

Judge Muma decoration

Judges Dognaia