When a third party files a lawsuit seeking confirmation of denial or existence of paternity, the period of release in cases where both parties die.

In the case of a litigation seeking confirmation of the existence of paternity, a relative under Article 777 of the Civil Act, as an interested party, may seek confirmation of the existence of paternity against both parties who need confirmation of the existence of paternity as the other party. If both parties who are the other party die, a prosecutor may seek confirmation of the existence of paternity. In this case, Article 865(2) of the Civil Act shall apply mutatis mutandis, and the period of filing a lawsuit should be observed. As such, “within one year from the date on which the other party becomes aware of his/her death” under Article 865(2) of the Civil Act refers to “within one year from the date on which the other party becomes aware of his/her death,” where a third party files a lawsuit seeking confirmation of the existence of paternity, a party may file a lawsuit seeking confirmation of the existence of paternity against the remaining surviving party when all the parties who are the parties who are the subject of confirmation of the existence of paternity are dead.” In light of Article 24 of the Family Litigation Act, it means “within one year from the date on which both parties are aware of their death.”

Article 865(2) of the Civil Act; Articles 24 and 28 of the Family Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Shin-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Prosecutor

Jeonju District Court Decision 2003Reu241 delivered on October 9, 2003

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

1. Fact-finding and judgment of the court below

The court below acknowledged the facts that the deceased non-party 1 and the non-party 2 were born between the deceased non-party 1 and the non-party 2, and that the deceased non-party 4, the non-party 5, the non-party 6, and the non-party 7 (hereinafter referred to as "the non-party 4, etc.") are recorded as the non-party 2. The court below determined that the plaintiff's action against the deceased non-party 4 and the non-party 1 and the non-party 2 against the deceased non-party 8 and the non-party 2 against the deceased non-party 1 and the non-party 2, and that the plaintiff's action against the deceased non-party 1 and the non-party 2 against the deceased non-party 1 and the non-party 2 against the deceased non-party 1 and the non-party 2's death of the deceased non-party 846 and Article 858 of the Civil Act can be seen as being unlawful.

2. The judgment of this Court

Article 865(1) of the Civil Act provides that a person who may bring an action pursuant to the provisions of Articles 845, 846, 848, 850, 861, 862, and 863 of the Family Litigation Act may bring an action seeking confirmation of denial or existence of paternity for any reason other than those mentioned above. Paragraph (2) of the same Article provides that if one of the parties dies, a public prosecutor may bring an action against the public prosecutor within one year from the date on which he/she becomes aware of the death. Article 28 of the Family Litigation Act provides that the provisions of Article 24 shall apply mutatis mutandis to the action seeking confirmation of denial or existence of paternity. Article 24(2) of the same Act provides that a third party may bring an action against the death of one of the parties who died, who shall seek confirmation of existence of paternity or paternity within 7 years from the date on which he/she becomes aware of the death of the other party. Article 86(2) of the Civil Act provides that the other party shall seek confirmation of existence of paternity or existence of the other party.

In light of the records, the court below determined that the plaintiff was merely the deceased non-party 1 and non-party 2's grandchildren, and the non-party 1 died on February 13, 1956, and the non-party 2 died on March 25, 1972, and that the plaintiff could sufficiently be aware of his death. Thus, it is clear that the exclusion period under Article 865 (2) of the Civil Act has lapsed.

However, if a third party files a lawsuit seeking confirmation of paternity against the prosecutor, the provision that "within one year from the date on which he becomes aware of the death" under Article 865 (2) of the Civil Act should be interpreted as seen earlier. Thus, the Plaintiff’s failure to file a lawsuit seeking confirmation of paternity against the prosecutor within one year from the date on which he becomes aware of the death of Nonparty 1 or Nonparty 2, which is his grandparents, cannot be readily concluded that the lawsuit is unlawful. After examining whether the death of Nonparty 4, etc., who is the other party, is over one year from the date on which the Plaintiff becomes aware of the death of the Plaintiff, it is possible to determine whether the exclusion period under Article 865 (2) of the Civil Act has lapsed.

The lower court should have tried to further examine when the Plaintiff became aware of the death of Nonparty 4, etc.

Nevertheless, the judgment of the court below which held that the plaintiff's action of confirmation of existence of paternity between the deceased non-party 4 and the deceased non-party 1 and the non-party 2 is unlawful as it is a disqualification challenge, or it did not exhaust all necessary deliberations as to when the plaintiff became aware of the death of the non-party 4, etc., or erred in the misapprehension of legal principles as to the limitation period under Article 865 (2) of the Civil Act, thereby affecting the conclusion of the judgment. Thus, the plaintiff's ground of appeal pointing

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)