In a case where Gap and Eul, as a legal couple, reported the birth of Byung who was born during the marriage period as the father of Gap, and later there was a result that Byung could not become the father of Eul in the gene type test, and Eul divorced Eul, and sought confirmation of the existence of paternity relationship between Eul and Byung after they married with Eul, the case holding that there is a benefit to seek confirmation of the absence of paternity relationship between Gap and Byung by the method of action to confirm the existence of paternity relationship.

As a legal couple, Gap and Eul reported the birth of Byung who was born during the marriage period as the father and wife of Gap, and the result that Byung cannot become the father and wife of Eul in the gene type test is the case in which Eul and Eul sought confirmation of the existence of paternity between Byung and Byung after they divorced with Eul, and they married with Byung and sought confirmation of the existence of paternity.

The case holding that, in full view of the fact that Gap and Eul have already divorced and the marital relationship has been broken down, after Gap and Byung did not exchange with each other, and that Byung had changed the origin of the result, the social and emotional relationship between Gap and Byung seems to be severed, and that Byung did not establish the parental relationship between Gap and Byung in genetic testing, Byung's claim for confirmation of non-existence of parental relation between Gap and Byung is not presumed to be the natural father of Gap, and therefore, Byung has a benefit to seek confirmation of non-existence of parental relation between Gap and Byung by the method of litigation for confirmation of non-existence of parental relation.

Articles 844(1) and 865 of the Civil Act

Plaintiff (Attorney Song-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Seoul Family Court Decision 2017Ra339443 decided May 30, 2018

September 4, 2018

1. Revocation of the first instance judgment.

2. We confirm that there is no parental relation between the Defendants.

3. The total cost of a lawsuit shall be borne individually by each party.

The same shall apply to the order.

1. Facts of recognition;

A. Defendant 1 and Nonparty 1 were legally married who completed the marriage report on April 3, 1996.

B. Nonparty 1 gave birth to Defendant 2 during the marriage period (date of birth omitted) with Defendant 1.

C. On January 27, 1997, Defendant 1 reported the birth of Defendant 2 to “○○○○” in accordance with Defendant 1’s sex at the time.

D. However, around March 1998 at Defendant 1’s request, Defendant 2 was unable to become Defendant 1’s friendship in the genetic type test conducted by the Defendants.

E. Defendant 1 divorced from Nonparty 1 on September 4, 1998, and the Defendants were left without exchange.

F. Defendant 1 married with the Plaintiff on August 23, 2004.

G. Meanwhile, according to the court’s trial on August 2008, Defendant 2 changed the outcome and its origin from “culture (Seoul)” to “Tgu (Tgu).”

[Reasons for Recognition] Gap evidence Nos. 1-2, 2-1, 3, 4, 3, and 4-2, and the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

A. Article 844(1) of the Civil Act provides that “A child pregnant by a wife during marriage shall be presumed to be a child of her husband.” In order to reverse the presumption of paternity, one of the married couple shall file a lawsuit of denial of paternity as prescribed by Articles 846 and 847 of the Civil Act and obtain the final judgment. It is unlawful to seek confirmation of the absence of paternity by means of a lawsuit of confirmation of denial of paternity under Article 865 of the Civil Act, rather than the method of action of denial of paternity (see Supreme Court Decision 91Meu566, Jul. 24, 1992, etc.).

B. Legal principles on the scope of presumption of paternity under Article 844(1) of the Civil Act

1) Existing Supreme Court precedents

A) In the past, the Supreme Court held that “A person who was born by the wife during the continuance of a legal marital relationship shall be presumed to be the father” under Article 844(1) of the Civil Act, and that, in order to deny such a child’s natural father, there is no intention to obtain a final and conclusive judgment pursuant to Article 847(1) of the Civil Act, and in case where a husband and wife actually divorced and she was dead while living in a separate life in several years, the above presumption shall not be reversed (Supreme Court Decisions 67Meu34 Decided February 27, 1968; 75Da65 Decided July 22, 1975, etc.).”

B) However, in the en banc Decision 82Meu59 delivered on July 12, 1983, the Supreme Court changed the previous precedents by holding that "Article 844 of the Civil Act applies to cases where the wife was born while the wife was living together and the wife was able to capture the father while the wife was living together, and in cases where the husband and wife was living abroad over a long time or the husband and wife were living separately due to de facto divorce, there is no presumption if it is apparent that the wife was unable to capture the father due to the lack of the club." In addition, the previous precedents of the Supreme Court were maintained as they were (Supreme Court Decision 8Meu85 delivered on May 10, 198, etc.).

C) Meanwhile, even in a case where the result of the genetic test that a father-child paternity is not established in a genetic test, the Supreme Court held that the presumption of paternity pursuant to Article 844 of the Civil Act is a strong presumption that the father-child paternity is not permitted, so long as the wife is born during the marriage, the presumption is not limited to the case where the wife is unable to capture the father-child due to lack of living together, such as where the wife is born abroad over a long time or the husband is dead due to de facto divorce, and the presumption cannot be asserted even if the wife is not the father-child unless there are such exceptional circumstances. To reverse such presumption, one spouse may file a lawsuit of denial of paternity pursuant to Articles 846 and 847 of the Civil Act and receive the final judgment. It is unlawful to seek confirmation of the absence of paternity by a litigation of denial of paternity pursuant to Article 865 of the Civil Act, rather than the lawsuit of denial of paternity, and to seek confirmation of existence of paternity by the action of denial of paternity pursuant to the claim for denial of paternity.

2) Review on the scope of presumption of paternity under Article 844(1) of the Civil Act

A) The presumption of paternity pursuant to Article 844(1) of the Civil Act is established on the premise that a married couple is living a normal marital life. Thus, in a case where it is apparent that a wife is unable to capture a father due to lack of the same document, such as a case where one of the married couple is separated by de facto divorce, etc., if it is apparent that the wife is unable to capture the father due to lack of the document (see, e.g., Supreme Court Decision 8Meu85, May 10, 198).

B) Furthermore, it is reasonable to view that the presumption of paternity does not extend to the presumption of paternity under Article 844(1) of the Civil Act for the following reasons in cases where the above conditions are met.

① Articles 844 and 846 of the Civil Act provide that a wife presumed a pregnant child in the course of marriage as the husband’s child and that a child with such status may remove the father’s marital relationship only through a strict action of denial of paternity. This is to protect not only the blood ties but also the family peace (see Supreme Court en banc Decision 82Meu59 delivered on July 12, 1983). Furthermore, it is intended to realize the legal stability and to realize the welfare of a person who intends to take care of a child in a prompt and stable environment through the confirmation of prompt father-child relationship. As such, there is no reasonable ground to maintain the presumption of paternity in the situation where the existence of the above provision is dead.

② The provision regarding presumption of paternity and action of denial of paternity was introduced from the time of enactment of the former Civil Act on February 22, 1958. This is based on an uncertain probability in the historical background where the accurate sense of paternity was practically impossible and the wife’s wrongful act was rare. It is unreasonable to maintain the above legal principle of presumption of paternity, even if the development of scientific-friendly appraisal technology clearly makes it possible to determine whether the presumption of paternity goes against the blood-type or the arrangement of genes.

③ Inspection of blood type or arrangement of gene type is relatively simple so it is easy to confirm the existence of blood relationship without infringing on the confidential private information of both spouses, and it is also very high objectivity and reliability of the result.

④ In addition, in a case where there is no blood relationship between the father and the child, it is difficult to block the method of revising the family relation register, etc. for the reason of the exclusion period of the action of denial of paternity even in a case where there is no blood relationship between the father and the child, and even in a case where there is no blood relationship between the father and the child, there is no particular legal benefit that should be observed. However, there is a harsh aspect for those who want to establish the legal father-child relationship corresponding to the true blood relationship.

⑤ A lawsuit of denial of paternity may be brought only by the father or wife (Article 847 of the Civil Act). In particular, there is a need to establish a way to confirm the paternity relationship with the father or father of a child who is subject to the presumption of presumption of paternity beyond such presumption.

C) Therefore, it is reasonable to view that the presumption of paternity does not extend exceptionally in a case where: (a) there is no apparent reason to believe that the wife is unable to capture a father, such as lack of a document of agreement; (b) the marriage relationship has already been substantially broken, such as divorce between husband and wife; (c) the social and emotional relationship between husband and wife was severed; and (d) the existence of blood relationship between the father and the child through the arrangement of blood type or gene type is scientific proven, etc.

C. Sub-decision

In light of the above legal principles, Defendant 2 cannot be presumed as the natural father of Defendant 1, taking full account of the following circumstances revealed through which the facts acknowledged as above were revealed: (a) Defendant 1 had already been divorced from Nonparty 1 and the relevant marital relationship had been broken down; (b) the Defendants failed to exchange with each other; and (c) Defendant 2 had changed the relevant outcome; (d) the social and emotional relationship between the Defendants appears to be broken down; and (e) the Defendants did not establish the parental relationship in genetic tests; and (e) Defendant 2 had the outcome of not establishing the parental relationship between the Defendants. Accordingly, the instant lawsuit seeking confirmation of the absence of parental relation between the Defendants by the method of litigation seeking confirmation of existence of paternity is lawful

3. Judgment on the merits

According to the above facts, it is clear that there is no parental relation between the defendants, and as the plaintiff who is the defendant 1's spouse, there is a benefit to seek confirmation.

4. Conclusion

Therefore, the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition by accepting the plaintiff's claim.

Judges Kim Sung-woo (Presiding Judge)