logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
대법원 1963. 6. 13. 선고 63다228 판결
[친자관계부존재확인][집11(2)민,017]
Main Issues

The former customary law concerning the time when the father or mother who was in an internal relationship obtains the status as the mother of a child born within 200 days after the marriage report;

Summary of Judgment

According to the old customs of our country, even if the date of birth of a person who was born in his/her living together without filing a marriage report, and the period between the date of birth of his/her parent and the date of birth is less than 200 days, such person shall naturally obtain the status as the guardian of his/her parent at the same time of birth.

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Ansan-young

Judgment of the lower court

Seoul High Court Decision 62Na144 delivered on April 4, 1963

Text

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Reasons

First of all, we examine the grounds of appeal for the plaintiff's Kim Training.

(1) As to the grounds of appeal Nos. 1 and 2, the court below held that even if a person who actually married and living together, but only the report of marriage was late and calculated as if he was born within 200 days from the date of the report of marriage, if only the evidence is evident, the father’s relationship between the father and the father shall be deemed to occur. However, this provision is based on Article 855(2) of the current Civil Act. However, the court below erred by misapprehending the so-called provision concerning quasi-determination as to a child born out of wedlock, which is the only system for presumption of paternity, and thus, it would be a trial to presume father’s paternity, unless it is in accordance with Article 844 of the current Civil Act, which can be viewed as the only system for presumption of paternity.

According to the facts duly established by the court below, although the plaintiff and the non-party were born between them on November 29, 1927 and January 15, 1929, the plaintiff and the non-party were born on their family register, they should be viewed to be 1923 years since they started living through marriage between the plaintiff and the non-party, and it is clear that the defendant's birth was 12.15 years of negative records in 1927. However, if the defendant's birth was made only on the family register due to the fact that the marriage report between the plaintiff and the non-party was delayed, it is certain that the defendant was born within 20 days of November 29, 1927 from the date on which the plaintiff and the non-party were married. Thus, as to the existence of the parent-child relationship between the plaintiff and the plaintiff, it should be based on the standards for the Japanese Civil Law, not on the presumption that the parent's birth was made within 0 days of birth, and even if the parent's birth was not confirmed, it should not be confirmed.

(2) As to the ground of appeal No. 3, if the court below's arguments were to be followed, it would result in a result that the child born after 200 days from the date of establishment of the marriage would be presumed as the father's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's husband's wife.

However, the court below ruled that it is not possible to recognize the plaintiff's act of the face-to-face scar, which was the plaintiff's wife, through the cooking of legitimate evidence, and therefore there is no reason to argue that there is such a fact, and the argument also corresponds to an attack against the contents of old customs of the Republic of Korea, such as the former part.

(3) As to the ground of appeal No. 4, as seen in the judgment of the court below, the defendant was born while the plaintiff was living together with the plaintiff, and even if the defendant is recognized as the plaintiff's child born out of wedlock, the defendant cannot be considered as the plaintiff's child born out of wedlock. Therefore, before the plaintiff's recognition, the defendant's birth should be deemed as not the plaintiff's natural father's child. However, since the defendant's birth report should be deemed as a substitute, the plaintiff's father's father's father's father's father's father's father's mother who was the

However, as seen above, it is reasonable to view that the relationship between the original defendant may occur even if the original defendant does not go through the plaintiff's recognition procedure in the old custom of Korea, as mentioned above, if it is the same as the original case in the old custom of Korea. Therefore, this essay shall be discarded.

Next, we examine the grounds for appeal by the plaintiff's agent.

(1) As to the ground of appeal No. 1, as to the ground of appeal on this point, the Plaintiff’s agent’s ground of appeal as seen above is invoked.

(2) As to the grounds of appeal Nos. 2 and 3, with regard to the fact that there was a salvous relationship between the Plaintiff’s deceased father-salky and the Defendant’s mother’s mother’s mother’s mother’s salvous relationship, the court below’s first instance witness’s salvous order, salvous calculation, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Park Jong-ho, Sick-kick, Sick-kick, Park Jong-kick, Park Ho-kick, Park Ho, Park Jong-k, Park Jong-k,

However, as seen above, since the court below's evidence cooking is not recognized as unlawful, it is not reasonable to discuss it.

While the court below, among the arguments, omitted the decision on the witness's testimony, it did not seem to have the witness's straw, even if the witness's studio does not appear. If the studio is a clerical error in the vehicle in which the witness's studio was a witness, it does not appear to have rejected the witness's testimony at the court below in light of the context before

Therefore, this appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party.

It is so decided as per Disposition by the assent of all participating judges.

The judge of the Supreme Court Na-Ba (Presiding Judge) Na-ri (Presiding Judge)

관련문헌

- 김상헌 인공생식에 있어서 부자관계설정에 관한 소고 민사법연구 제24집 / 대한민사법학회 2016

- 한국. 법원행정처 가족관계등록 사례 해설 법원행정처 2013

- 조미경 친생부인의 소에 관한 비교법적 고찰 가족법연구 11호 / 한국가족법학회 1997

- 이제정 친자관계확인소송의 심리상 주요 논점 재판자료 101집 (상) / 법원도서관 2003

- 이화숙 친생자추정과 친생부인의 소 사법행정 33권 4호 / 한국사법행정학회 1992

- 박보무 친생자관계 존부확인의 소 재판자료 18집 / 법원행정처 1983

- 최학규 친생부인의 소와 친생자관계 부존재확인의 소와의 관계 사법서사 26호 (83.11) / 대한사법서사협회 1983

- 박정화 친생자관계존부확인소송의 심리에 관하여 가사조정 4호 / 서울가정법원 조정위원회 2001

- 이덕환 대리모출산의 친자법상 문제 한양대 법학논총 13집 / 한양대학교 1996

- 김민중 대리모와 그 법률문제 판례월보 244호 / 판례월보사 1991

- 최한수 혼인외의 자의 지위 사법연구자료 19집 / 대법원 법원행정처 1992

- 장태환 친생부인의 소에 관한 연구 고려대학교 1997

- 이희배 추상적 부양당사자의 범위에 관한 고찰 인천법학논총 2집 / 인천대학교 법과대학 1999

- 최진섭 친족법의 미래의 과제 가족법연구 14호 / 한국가족법학회 2000

- 한국. 대법원 법원행정처 재판자료. 제29집:. 친족상속에 관한 구관습 대법원 법원행정처 1985

- 정주수 섭외출생절차의 실무적고찰 사법행정 29권 12호 / 한국사법행정학회 1988

- 김민중 인공적인간생식을 위한 「체외수정」과 그 법률문제 인권과 정의 168호 / 대한변호사협회 1990

- 김민중 현대의학과 법 법조 39권 4호 (90.04) / 법조협회 1990

- 어인의 친생자의 추정 고시계 40권 12호 (95.11) / 국가고시학회 1995

- 한국. 대법원 법원행정처 가족관계등록실무 Ⅰ 법원행정처 2012

- 고창현 사실혼에 관한 고찰, 2 법조 22권 7호 / 법조협회 1973

- 박정화 친생자관계존부확인소송의 심리에 관하여 실무연구 Vlll / 서울가정법원 2002

본문참조조문

- 민법 제855조 제2항

- 민법 제844조

- 민법 부칙 제2조

원심판결

- 대구고법 1963. 4. 4. 선고 62나144 판결

기타문서

- 기타자료