[1] In a case where a person under the age of 15 who was adopted by the birth report as a natural father without the consent of adoption under Article 869 of the former Civil Act continues to take the adopted child as his parent and live together with the other parent even after the age of 15, whether the report of birth as a natural father may take effect as an adoption report retroactively by deeming that the reported person as the natural father has implicitly ratified the birth report replacing the adopted child after the age of 15 (affirmative)

[2] The case holding that the judgment below erred by misapprehending the legal principles as to the adoption of the adoptive parent relationship between A and C, on the ground that: (a) A et al., upon Gap's birth at the time of Gap's birth, adopted A or sent B to childcare facilities; (b) Byung et al., upon Eul's birth report as the natural father of Eul and C; and (c) Byung et al., raising B et al. together with the birth report as the father and C et al.; and (d) Byung et al., after Eul et al.'s birth at the time of Gap's age, met Eul et al.; (b) visited Eul for about 15 years until Byung died; and (c) confirmed the existence of parental father's birth relationship against Byung after Byung's death; and (c) Byung et al., upon Gap's birth report as the actual adoptive parent's birth relationship, it did not err by misapprehending the legal principles as to the adoption status of A and C, and it did not constitute a divorce relationship between A and C et al.

[1] Even if the birth report of a natural father does not take effect as an adoption report because it did not meet the substantial requirements at the time of the birth report, if the adoption report satisfies the substantial requirements thereafter, the null and void birth report shall take effect retroactively. However, in cases where the status relationship corresponding to the null and void adoption report is not formed between the parties, the null and void act cannot be recognized solely by the declaration of ratification as to an invalid act. Thus, if a person under 15 years of age who adopted the natural father by the birth report without consent as prescribed in Article 869 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990) continues to adopt the adoption after 15 years of age as his parent and the other party who adopted the natural father is deemed to have confirmed the birth report as an implied adoption report after 15 years of age and the other party to the adoption report cannot be deemed to have the effect retroactively as the adoption report, and if the other party to the adoption report does not have any other effective condition as the adoption report, it shall be deemed null and void.

[2] The case holding that Gap's biological relationship was established between Gap and Byung's biological father at around the time of birth, and Eul did not have any other relation between Gap's biological father and Byung's biological father after Gap's birth, and Byung's biological father did not have any other relation between Gap's biological father and Byung's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's biological father's sexual father's biological father's sexual father's sexual relation.

[1] Article 865 of the Civil Act, Articles 869 and 878 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990), Article 49 of the former Family Register Act (amended by Act No. 3737 of Jul. 30, 1984) / [2] Article 865 of the Civil Act, Articles 869 and 878 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990), Article 49 of the former Family Register Act (amended by Act No. 3737 of Jul. 30, 1984) (see Article 44 of the current Family Register Act)

[1] Supreme Court Decision 2004Meu1484 decided Nov. 11, 2004 (Gong2004Ha, 2036)

Plaintiff (Law Firm Ho, Attorneys Jeong Jong-hun et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Doh-man, Counsel for the defendant-appellant)

Jeonju District Court Decision 2017Reu64 decided July 17, 2017

The judgment below is reversed, and the case is remanded to the Jeonju District Court.

The grounds of appeal are examined.

1. Basic factual basis

Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The defendant was born in 1980, and around that time, the defendant was born to the non-party 1 and the non-party 2. The defendant was born to the non-party 1 and the non-party 2.

B. On October 21, 1980, Nonparty 1 reported the birth of the Defendant himself and Nonparty 2 as his natural father (date of birth 1 omitted) on October 21, 1980, and Nonparty 2 raised the Defendant together with Nonparty 1.

C. On October 5, 1985, Nonparty 2 divorcedd with Nonparty 1, who became five years of age by the Defendant. After the divorce, the Defendant brought up solely by Nonparty 1, and Nonparty 2 did not contact or contact with the Defendant.

D. On August 10, 198, Nonparty 2 married with Nonparty 3, and Nonparty 3 and Nonparty 4, an adopted child during the marriage period, filed a report of birth as the natural father of Nonparty 3 and brought up the child. However, Nonparty 4 divorced from Nonparty 3 on July 8, 1999 on which Nonparty 4 becomes 10 years of age. After the divorce, Nonparty 4 took care of Nonparty 3.

E. At around 200, the defendant's money (the mother of the non-party 1) brought the defendant to the non-party 2 according to the defendant's wind, and the defendant and the non-party 2 began to come to and go again.

F. Nonparty 2 (hereinafter “the deceased”) died on August 21, 2015.

2. Judgment on ground of appeal No. 1

The lower court, on the grounds indicated in its reasoning, determined that it cannot be presumed that the consent or consent of the legal representative of the defendant was obtained at the time when the deceased and the non-party 1 reported the birth as the natural father of the defendant. In so determining, the lower court did not err by misapprehending the rules of evidence or by misapprehending the legal doctrine on requirements for adoption by abortion.

3. Judgment on the second ground for appeal

A. A. Even if the natural father’s birth report does not take effect as an adoption report because it did not meet the substantial requirements at the time of the birth report, if the adoption report subsequently satisfies the substantial requirements, the null and void birth report shall take effect retroactively. However, if the status relationship corresponding to the null and void adoption report is not formed between the parties, the null and void act cannot be recognized solely by the declaration of ratification as to the null and void act. Thus, if a person under 15 years of age who was adopted by the report of birth as a natural father without consent as prescribed in Article 869 of the former Civil Act continues to take the adopted person as his parent even after the age of 15 and takes a living together with the natural father after the age of 15, the person who was reported as a natural father shall have the effect retroactively as an adoption report, even if the birth report was not implicitly ratified as an adoption report, it shall not be deemed null and void as the other party who reported the adoption, and it shall not be deemed null and void as the adoption report even if it did not meet the natural parent’s status as an adoptive parent (see 14 years of adoption report).

B. The lower court, on the grounds the grounds indicated in its reasoning, determined that it is difficult to view that the Defendant, on the basis of the truth, sufficiently understood that the report of birth for himself was null and void, impliedly ratified the report of birth substituted for adoption, and that at the time of divorce between the deceased and the Defendant, his status and living relationship as an adoptive parent was severed, and even if there was a simplified traffic after the Defendant became an adult, it is insufficient to view that the Defendant and the Deceased did not meet the substantial requirements for adoption, such as the personal status and living relationship as an adoptive parent.

C. However, the lower court’s determination is difficult to accept for the following reasons.

1) From the time of the birth report of the deceased’s father to the time of the divorce with Nonparty 1, the deceased formed and maintained his status and living relationship as an adoptive parent between the Defendant and the Defendant. While there is room to deem that his status and living relationship as an adoptive parent between the deceased and the Defendant after the divorce was rare or severed, it appears that the following changes were mainly attributable to the external situation, and it is difficult to deem that the deceased and the Defendant tried to block the previous relationship between the deceased and the two. In other words, it was difficult to maintain the relationship between the Defendant and the adoptive parent in the situation where the deceased were born and brought up to Nonparty 4. In short, the deceased’s minor Defendant, who was born under the former care, care, custody, and bringing up of Nonparty 1, his father, had no choice but to accept more passively the hedging relationship with the deceased. As such, there is no reason attributable to the Defendant for continuing his status relationship as an adoptive parent of the Defendant and the deceased.

2) Even after divorce, the Deceased did not file a lawsuit seeking confirmation of paternity or existence of paternity, etc. against the Defendant, registered as a parent-child relationship register, in lieu of a judicial dissolution of adoptive relations. Rather, around 200, the Defendant’s installment machines, upon the Defendant’s wind, had the Deceased left the Defendant, and resumed the visit with the Defendant. This may be deemed to have had the intent to maintain the adoptive parent relationship with the Defendant even during the period when the status relationship between the Defendant and the Deceased was severed.

3) The Defendant, within the scope of Nonparty 1’s mother, who was a child under the part of Nonparty 1, re-exploited the deceased by requesting the deceased to her mother who was adult, and by requesting the deceased to resume his visit. At the time of re-exploiting, the Plaintiff appears to have been aware that the deceased was not his father’s mother. However, at the time of re-exploitation, the deceased continued to communicate by notifying the deceased of his child birth awareness and starting toward the deceased’s re-exploitation, and by continuing to consider the deceased as her mother during the instant lawsuit. Ultimately, the Defendant may be deemed to have expressed an intention to establish a relationship between the deceased and her adoptive parent even if the deceased was not her mother. Considering the above circumstances of the deceased, it may be recognized that there was an agreement between the deceased and the Defendant, namely, an adopted doctor, to

4) As if the relationship between the father and the father’s own life is realized in reality, various aspects may arise depending on various practical circumstances. If the foster parent takes care of and rear the deceased, and both adoptive parents live together, it is easy to affirm the identity and living relationship of the foster parent, but it is a typical form where the two are minors. Therefore, in the case of the mother who took care of the deceased as the defendant in this case and the mother who took care of the deceased for a certain period of time, who was a minor, were born a baby by her marriage and her own life, it is difficult to consider the defendant’s personal life relationship between the two parents after re-delivery as the basis of whether they were living together, care and nurture the deceased, and it is necessary to view that the defendant visited the defendant at the time of her birth, who was living together with his father and her mother, and gave birth to the defendant at the time of her birth and her mother’s emotional relationship after her birth. It is more necessary to view that the defendant visited the deceased’s emotional relationship after her birth and birth.

5) Therefore, the Defendant impliedly ratified the birth report in lieu of the adoption, and it can be deemed that the Defendant and the Deceased have a real fact of living as an adoptive parent. On the contrary, without examining the circumstances, the lower court, based on the circumstance that the Deceased did not visit the Defendant by divorce with Nonparty 1, concluded that the status-based living relationship between the Deceased and the Defendant was finally severed between the Deceased and the Defendant, and did not hold any particular deliberation and decision as to whether the status-based living relationship between the adoptive parent and the Defendant could have been recovered. Such determination by the lower court was erroneous in the misapprehension of legal doctrine as to the substantial requirements for adoption regarding implied ratification of the birth report of the natural father as substitute for the adoption report, and the Defendant’s ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Ahn Jae-chul (Presiding Justice)