The case reversing the judgment of the court below on the ground that there was a denial of paternity between the plaintiff and the defendant, for violation of the rules of evidence or incomplete hearing.

The case reversing the judgment of the court below on the ground that there was a denial of paternity between the plaintiff who is the biological mother and the defendant, and that there was an error of law.

Article 863 of the Civil Act; Articles 67 and 29 of the Family Litigation Act; Articles 183 and 187 of the Civil Procedure Act

Plaintiff

Defendant Samung Law Firm, Attorneys O Sang-gn et al., Counsel for defendant-appellant

Gwangju High Court Decision 92Reu203 delivered on March 10, 1994

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the court below's decision, the court below found that the plaintiff was living together with the defendant from around 1980 when he became aware of the defendant who had been a guest at the same time as Nanaeman's employee in Jeju Island around 1979, and the plaintiff was living together with the defendant from around 1980. The plaintiff, while living together with the defendant, was giving birth to the non-party 1 and the non-party 2 on July 29, 1983, while the plaintiff was living together with the defendant, he was living together with the non-party 1, the non-party 1, and the non-party 2 on the non-party 1, 1983. The court below rejected the plaintiff's request that the non-party 1 and the non-party 1 did not respond to the above non-party's blood-type decision after 1980 after 190 days after 190.

2. However, among the facts acknowledged by the court below, the fact that the plaintiff gave birth to the non-party on each day of the theory of the court below while living together with the defendant from springing in 1980 to springing in the plaintiff's three places is not accepted even based on the evidence cited by the court below.

First, the non-party 3 of the first instance trial witness testified that "the non-party 3 was aware of the fact that the plaintiff and the defendant living together and gave birth to the non-party," and that at the time of living together, the witness was living together with the same house for about five years (from about one month after the birth of the non-party 1 to the non-party 2 until the non-party 4 years old), and that at the time, the defendant testified to the witness that "the non-party 3 was the fact that the non-party was aware that he was living together with the plaintiff and the defendant, and that at the time of living together, the non-party 3 was issued a summary order on April 17, 192 to the non-party 29, and the non-party's testimony was non-party 7 with the non-party's consciousness." However, according to the evidence No. 7 of the above testimony, the part that the plaintiff and the defendant living together with the above witness at the time when the defendant asked the above witness to give testimony cannot be found credibility unless there are special circumstances.

Furthermore, according to the evidence Nos. 5-6 and 8 (Examination of Evidence as to Non-party 3 at the time of the investigation of the above perjury case) as cited by the court below and evidence Nos. 3 (non-party 3's resident registration) which was not rejected by the court below, the period when Non-party 3 entered the plaintiff's house and look at the non-party 3 was when Non-party 2, which is a small child, was the time immediately after he returned home from Masan to Jeju and became the birth of the non-party 1 month (the date when the non-party 3 moved to about about 10,00 months after her moving to Jeju) and the transfer date was October 22, 1983. Thus, since the transfer date was the date when the plaintiff 1 was examined as of October 22, 1983, the period was that the non-party 3 did not live together with the defendant, and in light of this, the above part of testimony is difficult to believe.

Rather, according to the above statements made by Nonparty 3 at the time of investigation, the defendant was on the plaintiff's house for the first time after about five months after the non-party 3 moved in the plaintiff's house, and he did so thereafter. According to the defendant's consistent statement (Evidence No. 5-3, No. 7) at the time of investigation, the defendant came to know that he was attending the plaintiff's house from spring in 1980 and came to know of the plaintiff. Around November 1, 1980, the defendant was on the first regular relation from the plaintiff's three banks, and 4 times more than 1980 days more than 190 days later, and there was no relation between the plaintiff and the non-party, but it is presumed that the plaintiff was born at the time of statement (the date of birth on March 4, 198 and the date of birth on October 19 through 11, 198).

In addition, the court below, on the ground that there is no inconsistency between the plaintiff's blood type (O type) and the defendant's blood type (A type) and the non-party's blood type (A type), and on the ground that there is no conflict between the plaintiff and the defendant, in light of the degree of the plaintiff's proof as to whether the relationship between the plaintiff and the defendant exists, the court below, in addition to the above simple blood type test, conducted a variety of types of blood type tests, gene type tests, and resistant type tests, etc., and without examining whether there is any inconsistency between the non-party and the defendant as to whether there is a conflict between the above blood type tests, cannot be said to be insufficient to consider it as the basis for recognizing the relation of paternity. The court below's decision rejecting this as stated in the judgment of the court below, but the court below, on the other hand, did not revoke the appraisal decision immediately, and there was a need to further attempt the above tests by imposing a fine for negligence or a punishment on detention, etc. under Article 67 of the Family Litigation Act.

3. Ultimately, the court below should have carefully deliberated and confirmed whether the date of birth on the family register of the non-party was based on sound records, and the presumption time of their attitude based thereon, and then should have determined whether the non-party was the natural father of the defendant after considering the results of the examination, such as blood type, gene type, organization suitability type, etc., more diverse types of blood, gene type, and organization suitability test as mentioned above, and then, whether the non-party was the natural father of the defendant, as the non-party 3 stated in the investigation agency, as the non-party 2's birth was difficult for six months after the birth of the non-party 2 and the witness 3 stated in the investigation agency. (If there were such facts, it can be deemed that the non-party was the natural father of the defendant.)

Nevertheless, the court below recognized the same facts as the reasoning of the judgment and accepted the plaintiff's claim for recognition as the non-party's natural father, which was erroneous in finding facts in violation of the rules of evidence, or failed to exhaust all necessary deliberations as to the matters necessary for recognition of paternity, which affected the conclusion of the judgment. Therefore, it is reasonable to point out this issue

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)