A. The meaning of "when the spouse expresses his/her intention not to select the adopted child" under Article 868 of the Civil Code

(b) Validity of selection of ex post facto adopted children disregarding the order of the selected persons and subordinate persons;

A. Article 868 of the Civil Code provides that "when the spouse expresses his/her intention not to select the person to be adopted after the child," the phrase "if he/she expresses his/her intention not to select the person to be adopted after the child, it does not constitute a case where he/she objects to the post adoption of the person on the ground that the age difference with a certain person is low.

B. Even if the lineal ascendant, who is the second priority in the selection of the adopted children, has removed the spouse who is the first priority in the selection of the adopted children, and has selected the adopted children, it is merely a ground for revocation of adoption under Article 884(1) of the Civil Act, not a ground for annulment of adoption,

Articles 868 and 884 of the Civil Act

Claimant

appellees

The claimant's claim of this case is dismissed.

Trial costs shall be borne by the claimant.

On September 28, 1961, the adoption of the respondent reported to the head of the Dong-gun, Chungcheongnam-do, Chungcheongnam-do shall be confirmed to be invalid.

The trial expenses shall be borne by the respondent.

According to the contents of Gap evidence Nos. 1 (No. 1) and No. 2 (No. 1,2) without dispute in the establishment, the fact that the defendant was appointed as the ex post facto adoption of the deceased non-party No. 2 and the defendant was reported to the defendant on Jan. 30, 1950 when the non-party No. 1-3 of the deceased non-party No. 2 died without his child on Mar. 8, 1953 and the non-party No. 2 was reported to the defendant on Sep. 28, 1961.

The claimant asserts that the adoption of the respondent against the defendant was null and void because it was not the head of the family at the time of the death of the deceased non-party 2, and the adoption was made against the will of the claimant, who is the ex post facto guardian, as well as not only the deceased non-party 2.

Therefore, if we combine the whole purport of the testimony and trial of the defendant, the non-party 3, the witness, and the non-party 1, the father of the non-party 2, after the death of the deceased non-party 2, wanting to select the defendant as the defendant as the ex post facto adoption of the non-party 2, even though the claimant opposed to the defendant on the ground that the age difference between the defendant and the non-party 1, the non-party 1, upon the consent of the defendant and his parents, can recognize the facts of selecting the defendant as the defendant and the ex post facto adoption of the non-party 2.

According to Articles 867 and 868 of the Civil Act, the right to select the adopted child after the death of the deceased is first to the deceased's spouse and the deceased's lineal ascendant has the right to select the adopted child after the death of the deceased only when the deceased's spouse expresses his/her intention not to select the adopted child after the death of the deceased. As acknowledged earlier, it is difficult to view that the right to select the adopted child after the death of the deceased non-party 2, who is the spouse of the deceased non-party 2, has been transferred to the non-party 1, who is his/her lineal ascendant.

However, inasmuch as there was an agreement between the deceased non-party 1 and the respondent, who is a lineal ascendant of the deceased non-party 2, there was no right to select the person to be adopted after adoption, even if there was no right to select the person to be adopted after adoption, such reason cannot be a ground for annulment of adoption even if it can be a ground for annulment of adoption under Article 884 subparagraph 1 of the Civil Act, and even if the deceased non-party 2 was not the head of the household at the time of death, such reason is merely a ground for annulment of adoption.

Therefore, the petitioner's appeal on the invalidation of ex post adoption against the respondent is dismissed, and the costs of trial shall be borne by the losing claimant and judged as per the disposition.

Administrative Patent Judges Oral Jina (Presiding Judge)