[1] In a case where the birth report of the natural father of an adoption was made with the intention of adoption and the actual requirements of adoption are met, whether adoption takes effect (affirmative), and in such a case, whether it is possible to claim confirmation of denial or existence of paternity (negative with qualification)

[2] Whether both mother and child relationship ceases to exist in a case where both mother and mother have left their homes due to divorce of adoptive parent (negative)

[1] The report of birth of the natural father as the intention of the parties to establish the adoptive parent relationship, and if the adoption satisfies all the substantial requirements, the adoption takes effect even if the adoption was made in the form thereof, and the adoptive parent relationship has the same contents as the parental relation in law, except for those which can be resolved by the dissolution of the adoptive relation. Therefore, the false report of birth of the natural father in this case has the function of the report of adoption to disclose the adoptive parent relationship, which is the legal parent-child relationship. In such a case, barring any special circumstances, such as where it is necessary to resolve the adoptive parent relationship by the dissolution of the adoptive parent relationship, the claim to confirm the existence of the legal parent-child relationship cannot be allowed.

[2] Article 76 of the Civil Code only provides that "the relationship of kinship due to adoption shall be terminated by annulment or dissolution of adoption," but it does not provide that "the divorce of foster parents shall not be the cause for termination of the relationship due to adoption." Since the former customary era only recognizes the divorce for adoption, the wife at the time of adoption was divorced and the adoptive parent is not the party at all, so it is logical that the relationship between the mother and the adoptee who were not the party to adoption should be terminated by the father at the time of the adoption. However, it is logical that Article 874 (1) of the Civil Code prior to the amendment of the Civil Code provides that "the relationship between the mother and the adoptee who are not the party to adoption and the adoptee who are the party to adoption shall not be adopted can not be adopted unless the person who is the party to adoption is jointly or severally," and Article 874 (1) of the current Civil Code provides that "the adoptive parent shall not be jointly adopted by both the parties to adoption and shall not be jointly adopted by both the parties to adoption."

[1] Articles 138, 865, and 878 of the Civil Act; Article 2(1)4 of the Family Litigation Act / [2] Articles 776 and 874(1) of the Civil Act; Article 874(1) of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990)

[1] Supreme Court en banc Decision 77Da492 delivered on July 26, 197 (Gong1977, 10219) Supreme Court Decision 85Meu86 delivered on February 23, 198 (Gong198, 593) Supreme Court Decision 91Meu153 delivered on December 13, 1991 (Gong192, 517), Supreme Court Decision 93Meu19 delivered on May 24, 1994 (Gong194Ha, 1827) / [2] Supreme Court Decision 79Meu35, 36 delivered on September 11, 1979 (Gong1979, 1236) (defluence)

Plaintiff (Attorney Cho Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Hong-hoon, Counsel for the defendant-appellant)

Busan District Court Decision 9Reu477 delivered on September 8, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The report of birth of the natural father as the intention of the parties to establish the adoptive parent relationship, and if the adoption satisfies all the substantial requirements, the adoption takes effect even if the adoption was made in such form, and the adoptive parent relationship has the same contents as the adoptive parent relationship in law, except for those that can be resolved by the dissolution of the adoptive relation. Thus, the false report of birth of the natural father in this case has the function of the report of adoption to disclose the adoptive parent relationship, which is the legal parent-child relationship. In such a case, barring special circumstances, such as where it is necessary to resolve the adoptive parent relationship by the dissolution of the adoptive relation, the claim to confirm the existence of the biological parent relationship itself cannot be allowed (see, e.g., Supreme Court en banc Decision 77Da492, Jul. 26, 197; Supreme Court Decision 85Meu86, Feb. 23, 198; 91Meu153, Dec. 13, 1991; 9Meu31, Apr. 19, 1994).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, including the background of the birth report against the defendant in this case. According to the facts of recognition, at the time of the birth report as the natural father between the non-party 1 and the deceased non-party 2, the defendant was approved by the adoption of the deceased non-party 3 and the non-party 4, who is the deceased non-party 1 as his natural parents at the time of the birth report as the father-party 1 and the deceased non-party 2, and the deceased non-party 2 had the intention to adopt and foster the defendant. After that, at the time of the birth report, the non-party 1 and the deceased non-party 2 continued a pro-friendly community relationship between the non-party 1 and the deceased non-party 2 and the defendant. Thus, the birth report against the defendant was dismissed, even if the form was wrong, the adoption report became effective, and there was no special circumstance such as the non-existence of the child-child relationship in this case's report of birth, and there was no legal interests.

In light of the above legal principles and records, the court below's fact-finding and judgment are just, and there is no error in the misapprehension of legal principles as to the interest in litigation for confirmation of denial or existence of paternity or incomplete deliberation. The ground of appeal on this point cannot be accepted.

2. In addition, Article 776 of the Civil Act provides that "the relationship of kinship due to adoption shall be terminated by annulment or dissolution of adoption," and Article 776 of the Civil Act provides that "the divorce of foster parents shall not be the cause for termination of kinship due to adoption." Since the former customary era only recognized the divorce for adoption, the wife at the time of adoption was divorced and the adoptive parent cannot become a party at all, so it is logical that the relationship between the mother and the adoptee who were not the party to adoption should be terminated if the mother comes out of the father(s). However, Article 874 (1) of the Civil Act prior to the amendment of the Civil Act provides that "the father(s) of the adoptive parent(s) shall not be adopted unless the spouse(s) is jointly or separately, and Article 874 (1) of the same Act provides that "the father(s) of the adoptive parent(s) shall be removed by both parties(s) and the mother(s) shall be removed by the two parties(s).

Therefore, the court below is just in rejecting the plaintiff's assertion on the ground that the extinction of relationship due to adoption is terminated only due to the annulment or dissolution of adoption, and whether the adoptive parent is in the same family register shall not affect the adoption relationship, and there is no error of law by misunderstanding the legal principles on the extinction of both-child relationship. The argument in the grounds of appeal on this point is not acceptable.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with Jin-hun Jin-hun's maintenance wall (Presiding Justice) and the plaintiff's Son Ji-yol in this lecture.