The case holding that the exclusion period shall be calculated from the time of acquisition of the nationality of the Republic of Korea, in case where a person who has acquired the nationality of the Republic of Korea and live in the country in accordance with the part of the Japanese occupation, files a lawsuit claiming recognition that he/she intends to register himself/herself in the family register of the deceased father;

In the case where a person who acquired the nationality of the Republic of Korea without a long-term life after acquiring the Chinese nationality from the beginning of the Japanese colonial era, files a lawsuit of recognition claim at the time when 40 years have elapsed since the time when the father of the network died, the case holding that the exclusion period under Article 864 of the Civil Act is calculated from the time when it is practically possible to file a lawsuit of recognition claim, which is the time of acquisition of the nationality of the Republic of Korea.

Article 864 of the Civil Act

Plaintiff

Prosecutor of Daegu District Prosecutors' Office

September 5, 2007

1. The Plaintiff is recognized as the father of the deceased Nonparty 1 (date of birth and permanent domicile omitted).

2. The costs of lawsuit shall be borne by the Plaintiff.

The same shall apply to the order.

1. Determination as to whether the period for filing a lawsuit is observed

On July 8, 1968, the Plaintiff filed a lawsuit seeking recognition against the deceased Nonparty 1 in this court as of May 1, 2007, when about 40 years passed since the deceased Nonparty 1 died.

Article 864 of the Civil Act provides, “In the case of Articles 862 (Lawsuit of Demurrer against Affiliation) and 863 (Lawsuit of Demurrer against Affiliation), if the father or mother dies, a lawsuit of objection or claim for affiliation may be brought against the public prosecutor within two years from the date on which the death of the father or mother becomes known, and according to the above provision, the lawsuit of claim for affiliation of this case brought by the Plaintiff was brought at the time more than two years have elapsed from the date on which the deceased non-party 1 becomes aware of the death of the deceased, and thus, the period of exclusion, which is the period of filing the lawsuit, shall be deemed unlawful.

However, as seen below, it is reasonable to interpret that the above exclusion period in this case can be interpreted as a lawsuit against the public prosecutor within two years from the time when the plaintiff acquires the nationality of the Republic of Korea, considering that it is practically impossible for the plaintiff to bring a lawsuit against the court of the Republic of Korea by complying with the period of filing a lawsuit under Article 864 of the Civil Act, in light of the fact that the plaintiff cannot bring a lawsuit against the public prosecutor within two years from the time when the plaintiff acquired the nationality of the Republic of Korea, which is the time when it is practically possible for the plaintiff to bring a lawsuit against the recognition claim in this case, as the time when the plaintiff acquired the nationality of the Republic of Korea.

Therefore, the plaintiff's lawsuit of this case is deemed to have complied with the period of filing a lawsuit stipulated in Article 864 of the Civil Code.

2. Facts of recognition;

A. On April 5, 1940, the Plaintiff was born between the deceased Non-Party 1 and the deceased Non-Party 2 from the Gluri-ri, Lluri-ri, Lluri-ri, the consideration for the Seongbuk-gun, Gluri-ri.

B. Around 1942, the deceased Nonparty 1 and the deceased Nonparty 2 got a nationality of the People’s Republic of China and lived there.

C. In acquiring the nationality of the People's Republic of China, the deceased non-party 1 did not use the Plaintiff's name as a "literture" used at the time of reporting the birth in Korea, and used a new name as a "name".

D. On July 8, 1968, the deceased non-party 1 died from the village of the Yongsan-gu, Yongsan-gu, the People's Republic of China's Republic of China, and on March 14, 1990 at the same place, the deceased non-party 2 died.

E. On April 21, 2005, the Plaintiff applied for the reinstatement of nationality to the Government of the Republic of Korea. However, the Plaintiff did not accept the application for naturalization on the ground that there is a lack of vindication of the facts that the Plaintiff is the same as the above “equition” and thereafter acquired the nationality of the Republic of Korea by obtaining permission for naturalization as of April 5, 2006.

[Grounds for Recognition: Evidence No. 1-6, the purport of the whole pleadings]

3. Determination

According to the above facts, since it is obvious that the plaintiff is the father of the deceased non-party 1, the plaintiff's claim seeking affiliation is justified and it is so decided as per Disposition.

Judges Cha Gyeong-hwan