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(영문) 헌재 1997. 3. 27. 선고 95헌가14 96헌가7 판례집 [민법 제847조 제1항 위헌제청]
[판례집9권 1집 193~218] [전원재판부]
Main Issues

1. Whether “within one year from the date of birth” under Article 847(1) of the Civil Act is unconstitutional

2. Cases of rendering a ruling of inconsistency with the Constitution as a measure to remove the constitutional status;

Summary of Decision

1. A. Whether to set a limitation period to a certain extent in a lawsuit of denial of paternity is a matter of how to harmonize the interests of the father and the interests of the person who intends to find legal stability through prompt confirmation of the parent-child relationship in order to conform to the truth, with the circumstances and traditional concept of the society, and in principle, it should be decided by considering the fundamental rights and status of the interested parties, and the constitutional decision on marriage and family life. Therefore, in principle, the legislative authority’s discretion may be left at the discretion. However, if the limitation period is too short or unreasonable before the child’s paternity is confirmed due to the lapse of the limitation period, if the father’s opportunity to deny the parent-child relationship against the true blood relationship is extremely difficult or impossible, it goes beyond the limit of legislative discretion and it is not unconstitutional.

B. Article 847(1) of the Civil Act provides that “within one year from the date on which he or she becomes aware of the birth” as to the exclusion period of a lawsuit of denial of paternity and the starting point of calculation, but in general, the existence of the parent-child relationship causes no special circumstances or any opportunity to

In light of the common sense, the provision that “the date on which the father becomes aware of the birth” of the period of exclusion of the action of denial of paternity is very unfavorable to the father, and the exclusion period, “one year,” itself, is considerably short in view of various circumstances, such as the social reality circumstances that have been changed during the period and the traditional custom emphasizing the blood origin. As a result, the provision of the above law is extremely limited to the opportunity to deny the parent-child relationship from the father who intends to deny the parent-child relationship beyond the legislative discretion, thereby infringing on the basic rights on the family life and status of the father who intends to deny the parent-child relationship according to free will, by extremely limiting the opportunity to deny the parent-child relationship.

2. A. Article 847(1) of the Civil Act infringes on fundamental rights beyond the limit of legislative discretion, and even if the provision violates the Constitution, if there is a simple declaration of unconstitutionality, it would be a legal gap where the limitation of the limitation period of the denial of paternity would be temporarily nonexistent, which would cause a lot of legal confusion, and as a matter of principle, the duty to adjust the constitutionality of the provision unconstitutional is a matter belonging to the discretion of legislators. Thus, the Supreme Court of Korea declares a decision of inconsistency with the Constitution instead of a decision of unconstitutionality instead of a decision of unconstitutionality, until the legislator newly amends the provision subject to the adjudication of this case, the court and other State agencies are prohibited from applying and implementing it until the legislator newly amends the provision

B. The Court of Justice seeks to present cases where the action of denial of paternity may be brought within one year from the time when it becomes aware that there is no parental relation between the father and the father, but rather from the time when five years have passed after the birth of the child, considering practical difficulties in the legislative formation based on abstract criteria theory.

It seems that the provisions of the Swiss Family Law are legislative cases in harmony with the interests of the father and the child.

Private Opinion by Justice Kim Jin-Jin

2. B. B. The Swiss Family Law presented by the Majority as a model of the revised law is to prevent father from filing a lawsuit of denial of paternity if five years have passed after birth, and thus, it is against the principle of excessive prohibition, since it seriously limits the right to personality and the right to trial of the father and the prompt confirmation of the status of a child are limited only to the prompt confirmation of the status of a child, it cannot be said that a harmonious legislation is not made as argued by the Majority Opinion.

Macio Macio Macio

2. The Majority Opinion’s decision of inconsistency with the Constitution is contrary to Article 111(1)1 and 5 of the Constitution, and Articles 45 and 47(2) of the Constitutional Court Act, which recognize the retroactive effect of the decision of the Constitutional Court in principle, and our legal system that recognizes the retroactive effect of the decision of the Constitutional Court and our legal system that recognizes the retroactive effect of the decision of the Constitutional Court are confused with each other that of Germany’s non-permanently erroneous acceptance of the German case. Thus, in this case,

Seoul Family Court (95Hun-Ga14 case)

2. Cheongju District Court (96Hun-Ga7 case).

1. Civil ○○ (95Hun-Ga14 case)

2. Conciliation-gu (96Hun-Ga7).

1. The Seoul Family Court 94D93084 case of denial of paternity (95Hun-Ga14 case);

2. Denial of paternity (the case of 96Hun-Ga7) by the Cheongju District Court.

Documents subject to adjudication;

Article 847 of the Civil Act (1) In a lawsuit for recognition of whether or not a child or his mother is a person having the parental authority, the person having the parental authority shall make a proposal within one year from the date on which he becomes aware of the birth of the child or the mother.

(2) omitted.

[Reference Provisions]

Articles 10 and 36(1) of the Constitution

Reference Cases

2. Adjudication of July 29, 1994, 92Hun-Ba49 and 52 (Joinders)

Declaration of September 28, 1995, 92Hun-Ga11, 93Hun-Ga8, 9,10 (Consolidation)

On November 30, 1995, 91Hun-Ba1, 2, 3, and 4, 92Hun-Ba17 and 37, 94Hun-Ba34, 44, 45 and 48, 95Hun-Ba12 and 17 (Consolidation)

Text

Article 847(1) of the Civil Act (amended by Act No. 471 of Feb. 22, 1958 and finally amended by Act No. 4199 of Jan. 13, 1990) provides that “within one year from the date on which he becomes aware of the birth” does not conform with the Constitution.

Reasons

1. Case summary and the object of the trial;

A. Case summary

(1) 95Hun-Ga14

(A) On December 17, 1992, 192, the Cheong-won and the non-applicant Non-Appellant were married on April 6, 1992 and the legal couple who completed the report, and was born on December 17, 1992 during the marriage period (the birth on February 17, 1993 in the family register).

.However, on August 21, 1994, the applicant applicant for the proposal filed an action of denial of paternity (94d93084) with the Seoul Family Court on the ground that the above civil petition is not one's own father.

(B) In addition, Article 847(1) of the Civil Act provides that the period of filing a lawsuit of denial of paternity is "within one year from the date on which the birth becomes known" as the period of filing a lawsuit of denial of paternity under the Civil Act (amended by Act No. 471, Feb. 22, 1958; hereinafter the same shall apply) shall be "within one year from the date on which the birth becomes known" due to the infringement of fundamental rights under the Constitution and the unconstitutionality of the above provision, the court accepted the above application on June 22, 1995 and decided to propose a trial on the unconstitutionality of the above provision, and this decision was accepted by the Korean Court on July 11, 1995 (No. 95Hun-Ga14).

(2) Case No. 96A7

(A) On September 22, 1981, 1981, the Cheongju District Court brought an action of denial of paternity (95d4423) against the above Kim-young and Cho Nam-Nam on July 1, 1993, which was a legal couple who married on September 22, 1981 and completed the report, and on July 1, 1993, the above Kim-young gave birth to the non-applicant Kim-young. However, on September 14, 1995, the Cheongju District Court brought an action of denial of paternity (95d4423) against the above Kim-young and Cho Nam-young on the ground that the above Cho-Nam

(B) In addition, Article 847(1) of the Civil Code provides that the period of filing a lawsuit of denial of paternity shall be one year from the date on which the applicant becomes aware of the birth of the child," which violates fundamental rights under the Constitution and thus makes a request for adjudication on the constitutionality of the above provision (95z.15) to the Cheongju District Court on the ground that it is unconstitutional. On February 12, 1996, the above court accepted the above application and decided to make a proposal for adjudication on the constitutionality of the above provision, and this decision was made by the Korean Court on March 2, 1996.

Korea was accepted (96Hun-Ga7).

(b) Object of adjudication;

The subject of the instant trial is whether the provision of Article 847(1) of the Civil Act “within one year from the date of birth” is unconstitutional, and the contents of the relevant provision of the Civil Act are as follows.

Civil Act § 847 (Action of Denial of Paternity)

(1) The action of denial shall be brought against a child or a mother who is a person with parental authority within one year from the date on which he/she becomes aware of the birth.

(2) omitted.

2. Reasons for requesting a court and the opinions of related agencies;

A. Summary of the reasons for the decision on the proposal by the requesting court

Article 847(1) of the Civil Act provides that the period of filing a lawsuit of denial of paternity against a person who is subject to the presumption of paternity under Article 844 of the Civil Act shall be “within one year from the date on which he or she becomes aware of the birth” and that the period of filing a lawsuit of denial of paternity is extremely short to the extent that it can not be found in legislation of any other country than Japan. This is an extremely short period of time before the period of filing a lawsuit is too long, and the period of filing a lawsuit is too long, and thereby, the opportunity for father to deny paternity against the true blood relationship is extremely limited. This is against the universal human sentiment of blood relationship, and is extremely contradictory to the traditional concept of our nation, which is very strong enough to the extent that the birth to true blood relationship is not compared with foreign countries, such as Japan. Ultimately, Article 847(1) of the Civil Act provides that the period of filing a lawsuit of denial of paternity is extremely short to the extent that it is not possible to find the period of filing a lawsuit of denial of paternity.

Article 36 (1) of the Constitution guaranteeing the prohibition of infringement of rights is in violation of Article 36 (1).

B. Summary of opinions from the Minister of Court Administration

Article 844 of the Civil Act provides that a father who intends to deny the paternity relationship of a person who is presumed to be the father of a child shall undergo any litigation procedure. Whether the period for filing a lawsuit should be certain is an issue of legislative policy to determine what is the father’s interest to recover true blood-related relationship and the interest of a person who intends to make a prompt confirmation of the status relationship. Article 847(1) of the Civil Act limits the period for filing a lawsuit of denial of paternity to “within one year from the date on which he/she becomes aware of the child’s birth” to “within one year from the date on which he/she becomes aware of the child’s birth” as a matter of legislative policy. The purport of Article 847(1) of the Civil Act lies in setting the period for filing a lawsuit of denial of paternity to the father, while it is intended to achieve legal stability

3. Determination

(a) Action of denial of paternity and the purpose of exclusion period;

In a case where a child is born in a married couple’s family relationship, generally, the mother and child relationship is apparent in appearance due to the natural phenomenon of childbirth, whereas the father’s relationship is not necessarily. However, since the wife is highly probable for the father to be the child during marriage, Article 844(1) of the Civil Act provides that “the wife shall be presumed to be the father,” and Article 844(2) of the Civil Act provides that “a person who was born within 200 days from the date of marriage or within 300 days from the date of termination of marriage shall be presumed to have been born during marriage, shall be presumed to have been born during marriage.”

However, under Article 844 of the Civil Act, a person who is subject to the presumption of paternity is not a father, but the wife is a man who has produced through sexual negotiations with other males. In such a case, as long as the father abides by the denial of paternity, it shall not be involved in the other person for the peace of the family, but it shall not be forced by the father despite the father’s assertion that the father is not the father himself/herself. Accordingly, Article 846 of the Civil Act provides that “The father may bring a lawsuit to deny the father’s paternity in the case of Article 844 of the Civil Act, which means that the father may bring a lawsuit to deny the paternity of a person who is subject to the presumption of paternity.”

However, since the order of denial of paternity requires the original stability, even if the father grants the above right of denial of paternity to the father, the father’s relationship is left in an uncertain state for a long time, and thus, the status of the child who cannot grow and receive education under the care of his parents, may not be unstable. Accordingly, the Civil Act guarantees the right of denial of paternity by granting the father the right to bring a lawsuit of denial of paternity, while limiting the right of denial of paternity by allowing the father to bring a lawsuit of denial of paternity only within a certain period of exclusion. In other words, Article 847(1) of the Civil Act provides that “The action of denial shall be brought within one year from the day on which the child or the father, who is the person with parental authority, becomes aware of the birth,” which sets the limitation period for the action of denial of paternity as “within one year from the day on which the child becomes aware

(b) legislative discretion and its limitations on the exclusion period;

The issue of whether or not a certain exclusion period is set up in respect of the action of denial of paternity is related to the legal status of the father as well as the father and the father and the mother and their families, and thus, the benefit of the father and the father to fit legal parent

The issue of how to harmonize the interests of the person who intends to find legal stability through prompt confirmation of the parent-child relationship with the actual state of the society and traditional concept is, in principle, left to the discretion of the legislative authority in consideration of the fundamental rights of the interested parties and the constitutional decision on marriage and family life.

However, the effect of presumption of paternity, which is recognized in accordance with Article 844 of the Civil Act, is very strong compared to other presumption recognized by law, and thus, recognition of a child born out of wedlock as a child born out of wedlock is not permitted, or a child claims affiliation against his/her mother. If the period for filing a lawsuit expires, it is not allowed to reverse such presumption even if it is obvious that such presumption would go against the truth later.

As a result, it is possible to violate Article 10 of the Constitution that guarantees human dignity and value, the right to pursue happiness, and Article 36 of the Constitution that provides for the protection of marriage and family life, in that the father who has no longer dispute over the parent-child relationship is forced against the truth against his will.

Therefore, it is an important issue to which extent the period of filing a lawsuit of denial of paternity is to be certain, and in principle, even if it belongs to the legislative discretion, if the period of filing the lawsuit itself is too short or unreasonable, and if the period of exclusion expires before it becomes clear as to whether the father's father is the father's paternity, which intends to deny the paternity, is considerably difficult to bring a lawsuit or virtually impossible, and the opportunity to deny the parent-child relationship against true blood relationship is extremely limited, it goes beyond the limit of the legislative discretion and is unconstitutional.

subsection (1).

C. Whether Article 847(1) of the Civil Act is unconstitutional

Article 847(1) of the Civil Act provides that “within one year from the date on which the father becomes aware of the existence of paternity” in relation to the period of filing a lawsuit of denial of paternity and the starting point thereof, and uniformly stipulates “within one year from the date on which the father becomes aware of the existence of paternity” and does not allow any exception.

In this regard, I first examine the starting point of the exclusion period, which provides that the starting point of the exclusion period shall be from the date on which the person becomes aware of the birth.

As the parent-child relationship is originally established based on natural blood relationship, it is the principle of marriage and family system guaranteed by the Constitution to accord with true blood relationship. Nevertheless, it is reasonable to set the exclusion period of the action of denial of paternity so that it may no longer dispute over the parent-child relationship after the lapse of a certain period of time, and to force the father who knows the existence of the parent-child relationship or who is suspected of being aware of the existence of the parent-child relationship, and give an opportunity to deny it.

In principle, foreign legislation cases, such as Germany, France, and Switzerland, set a certain period of time, counting from the time when the father becomes aware that there is no paternity relationship with the father, as the period for filing an action of denial of paternity, and special circumstances may exceptionally bring an action of denial of paternity, in exceptional circumstances, even in cases where the father fails to bring an action within

It seems to result in the above-mentioned reasons in taking the legislative form that provides for the legislation.

However, as to the existence of the parent-child relationship, it is a common example that it is difficult or doubtful that the existence of the parent-child relationship does not exist unless there is any special circumstance or any reason, but it is difficult or doubtful to understand that the parent-child relationship does not exist. However, in determining the exclusion period of the action of denial of paternity, it is stipulated that the parent-child relationship does not exist between the father and the father, without considering at all, it is very unfavorable

Furthermore, the exclusion period of “1 year” itself is considerably short in light of various circumstances. The existence or absence of paternity can not be determined in light of the nature that is difficult to easily understand, or in general, one year from the date of becoming aware of the birth of the child, which is too short and does not actually create an opportunity to file a lawsuit. Although the subject provision of adjudication is a provision based on the traditional concept that is being protected during the marriage period, modern society has a lot of changes in the traditional concept due to the increase of women’s social activities and the increase of value concept and the completion of the awareness of ethics, and the possibility of changing children to one another repeatedly are given birth at specialized institutions such as hospitals and hospitals, etc., and there is a high possibility that genuine parent-child relationship may not exist. Accordingly, the need to grant the right of denial of paternity to the father increases rather than in our country, while maintaining the birth period of a person who has a traditional custom with respect to blood transfusion, which is more important and has a traditional custom.

The one-year provision is too short from the date. As a result, the father who intends to deny the paternity has made it considerably difficult or practically impossible to bring a lawsuit, and thereby has extremely restricted the opportunity to deny the father-child relationship contrary to true blood-related relationship. Therefore, it deviates from the scope of legislative discretion and infringes on the fundamental rights of the Constitution as follows.

First, Article 10 of the Constitution guaranteeing the dignity and value of human beings and the right to pursue happiness is violated.

Article 10 of the Constitution provides that all citizens have dignity and value as human beings and have the right to pursue happiness. Accordingly, all citizens have the right to autonomously form their own living area on the basis of their dignity and personality rights. However, in this case, the exclusion period of a lawsuit of denial of paternity shall be one year from the date when the father becomes aware of the birth of the child, and the period of exclusion period shall be set in one year from the date when the father becomes aware of the father's birth, thereby restricting the opportunity to deny the parent-child relationship with the father who left abandoned after the lapse of the exclusion period, and allowing the father who became aware of the father's non-child relationship only after one year from the birth of the child, to lose the right to denial of paternity until they go against the will of the party. This is against the universal sentiment of the human being, and it infringes on the father's family life and the right to pursue happiness that should be enjoyed in the family relationship with the father's free will.

Second, Article 36 (1) of the Constitution guaranteeing the prohibition of infringement on the rights of marriage and family life is violated.

Article 36(1) of the Constitution of the Republic of Korea provides that marriage and family life shall be established and maintained on the basis of the dignity and gender equality of individuals, and the State shall ensure that it is the State. This provision provides that the State shall guarantee the free formation of marriage and family life on the basis of an individual’s autonomous will and gender equality. However, in this case, it is not consistent with true blood-related relationship, not sufficient opportunity for the parties to deny the parent-child relationship, and allowing the parties to lose the right of denial of paternity within an extremely short period, and to continue to maintain other legal status, including the duty of support, against the person.

(d) The ruling of inconsistency with the Constitution and the measure to remove the inconsistency;

As seen earlier, Article 847(1) of the Civil Act, which is a provision subject to adjudication of the instant case, infringes on fundamental rights beyond the limit of legislative discretion and is in violation of the Constitution. However, this purport is to purport that the establishment of the exclusion period in a lawsuit of denial of paternity does not go against the Constitution, but rather, it would lead to an error of causing the same result as remarkably difficult exercise of the right of denial of paternity or de facto deprivation of the right of denial of paternity by uniformly stipulating “within one year from the date on which the father became aware of the existence of the paternity was known in determining the period,” regardless of

However, if Article 847(1) of the Civil Act provides a declaration of simple constitutionality, the limitation of the limitation period of a lawsuit of denial of paternity becomes a legal blank state where there is no temporary restriction of the limitation period of a lawsuit of denial of paternity, and the reversal

As to the father-child relationship which has been accepted by interested parties as a status relationship which cannot be said, there is a concern that a lot of legal confusion may be re-written at any time until the amended legislation is implemented, and as a matter of principle, the duty of constitutional adjustment of the unconstitutional provision belongs to the formation discretion of legislators. As such, the Korean Court declares that the Article 847(1) of the Civil Act provides that the court and other state agencies shall cease to apply and implement “within one year from the day on which the father-child becomes aware of the birth” in Article 847(1) of the Civil Act until the new amendment is made in line with the reason for unconstitutionality that at least the provision in the instant case was made by legislators, but the court and other state agencies shall cease to apply and implement the same as “within one year from the day on which the father-child becomes aware of the birth” in order to maintain the only formal existence provisionally.

On the other hand, the state of inconsistency with the above constitution should be removed as soon as possible through the amendment of the law, and the choice of one of the various possible methods to remove the inconsistency should belong to the discretion of the legislative authority. However, our courts have presented cases where the legislative formation by the abstract standard theory that is not to restrict the broad freedom of formation of the National Assembly, but to be a quasi-competence in consideration of the practical difficulties of legislative formation based on the above abstract standard theory set forth above. In other words, the Switzerland Family Law may bring an action of denial of paternity within one year from the time when the father becomes aware that there is no parental relation between the father and the father, but in the case of the child, it shall not be brought within five years after the birth unless there are any special circumstances.

The above legislation cases, in principle, consider the benefit of the division by calculating the exclusion period from the time when it is known that there is no additional parental relation, and thus, allow the father to take full consideration of the benefit of the division, but on the other hand, if five years have passed after birth, it is impossible to file a lawsuit, thereby promoting early confirmation of the status relationship for the benefit of the child, and it is considered a harmonious legislation.

4. Conclusion

Thus, Article 847 (1) of the Civil Code, which is the provision subject to the adjudication of this case, does not conform with the Constitution, and it shall be decided as per Disposition since the part within one year from the date of birth is in conformity with the Constitution.

This decision is by the unanimous opinion of the remaining Justices, except there is a separate opinion by Justice Kim Jin and a dissenting opinion by Justice Cho Jin as follows.

5. Concurring Opinion of Justice Kim Jin-jin

A. The Majority Opinion argues that even if Article 847(1) of the Civil Act of the same Act does not know that a person does not have a true blood relationship and does not want to have a father-child relationship, limiting the period of time for a short period of one year after the birth of a child who does not want to have a father-child relationship does not coincide with the Constitution, the action of denial of paternity may be brought within one year from the time when the father becomes aware that there is no parental relation between the father-child for the removal of such state of inconsistency with the Constitution, but even in that case, the provisions of the Switzerland Family Law of the Switzerland, stating that the action of denial of paternity cannot be brought within five years after the birth of the child, is a model of the amended law, barring any special circumstance

Since the exclusion period of the action of denial of paternity is calculated from the time when the father becomes aware that there is no absence, the benefit of the father is sufficiently considered by giving sufficient deliberation period to the father, but on the other hand, if five years have passed after the birth of the lawsuit, it is considered as a harmonious legislation that promotes the early decision of the status relationship for the benefit of the child by making it impossible to file the lawsuit impossible to do so.

B. However, limiting the period of filing a lawsuit for denial of paternity by setting a certain period of time within a sufficient period of consideration to make a personal decision as to whether to bring an action of denial of paternity between the child and the child’s interest can be deemed as the legislation to harmoniously coordinate conflicts existing between the child’s interest. However, even though the child had been unaware of being his/her own father, for example, when a certain period of time expires after the child’s birth, the law that provides that a lawsuit of denial of paternity may not be brought after five years, such as the Switzerland Family Act, is unconstitutional in restricting the basic rights of the father, barring special circumstances.

C. The general moral right derived from the right to pursue happiness (the first sentence of Article 10 of the Constitution) guarantees the autonomous area necessary for the private formation of the life of each individual in order to realize and maintain the identity of each individual. The formation of the parent-child relationship based on one of the factors having a significant meaning in the realization of the personality of an individual. The issue of whether the parent-child relationship is based on the father’s father’s father’s father’s blood relationship can have a decisive meaning in the formation and maintenance of the family relationship, including the father’s relationship and the marital relationship. Therefore, one’s blood relationship can be said to have a critical meaning in the realization of the personality of the individual.

The enforcement of a law to prevent denial of the parent-child relationship with a non-resident is a serious limitation on the general personality right of the father. If the parent-child relationship continues against the will without giving substantial opportunity to bring an action of denial of paternity, it is also limited to the claim for a trial.

D. In restricting the fundamental rights of the people by law, the purpose of the restriction is justifiable (grounded on the legitimacy of the purpose), the method is appropriate, and the restriction of the basic rights is limited to the necessary minimum extent (the minimum degree of damage), the degree and meaning of the public interest to be achieved by the legislation is greater than the degree and meaning of the restriction of the basic rights (the balance of the legal interests). If all these elements are not satisfied, the legal provisions are contrary to the excessive prohibition doctrine under Article 37(2) of the Constitution. Therefore, if a certain period of time expires after the child’s birth, for example, if five years have passed after the child’s birth, such as the Swiss Family Law, even though the child knew that it was not his blood relative, the legal provisions that prevent the father from bringing an action of denial of paternity against the principle of excessive prohibition are examined.

E. The father bears a heavy obligation by supporting and educating a person, and if he/she is the child, he/she succeeds to the property to the person, and if he/she is the child, the household will be linked. If he/she imposes a heavy obligation on behalf of a person who is not the child, at least should he/she have been aware of the added fact and have been able to make a personal decision as to whether or not he/she continues to be recognized as his/her own person on his/her basis. In addition, if he/she does not wish to recognize a person as a person on the basis of this decision, the father should be given an opportunity to bring an action of denial of paternity to

In addition, conflicts between the interests of the father and the child may be resolved harmoniously only when the father gives a practical opportunity to make a free personal association and give a substantial opportunity to bring an action of denial of paternity, but only when the period necessary for personal association and the period of filing an action is not specified, which is the longer time period. Nevertheless, if our law provides that a certain period after the birth of a child, such as the Switzerland Family Act, if our law provides that a child cannot bring an action of denial of paternity even if he or she was born during the period of birth, such a provision would not allow the father to bring an action of denial of paternity, even though he or she did not know about the fact that he or she is not the father, such a provision would deprive the father of the practical opportunity to bring an free personal association and not actually give him or her an opportunity to exercise the right to claim a trial, and ultimately, the father should continue to bear heavy obligations such as the duty to support and education against his or her will, and a person who is not his or her blood relative, has to keep his or her family living together.

As a matter of principle, the law must demand the average person of that society to be allowed. However, our society is a traditional society in which the blood transfusion is recognized as a critical value. In particular, in the family relationship that leads to a marital relationship based on the positive results of the marital relationship, the blood transfusion is more emphasized. For example, in the case of the father’s birth, a significant three months after the father’s birth, such as the Switzerland Family Act, if the father knew that the father is not his own blood, it is very serious and mental impulse that the father feel added as an average person of our society that emphasizes the blood transfusion when he knew that the father is not his blood, and that the father is not a father’s blood, and the father’s blood relationship with the wife will also be suffered by the father’s relative or see, and the wife’s marital relationship with the wife

There are many cases where the failure is caused by the failure of life. In such a case, the father continues to support and educate the person who is in the name of the wife, and knows that it is not the father's father's father's father's father's father's father's father's father's father's father's father's father's father's mother's mother's family relation against his own will, and forced a person who is not his own father's father's father to inherit his family and inherit his property to the person who is not his own father's father's father's father's own will. Such pain is almost the same as long as it goes against the will of the father to recognize the person as the person even if he does not distinguish from his wife's father's wife's wife's own will. In such a case, the father's personality right

Moreover, it is difficult to deem that the law without any cause attributable to the father accords with the interests of the child. It is difficult to faithfully act as a father for a person who has no intention to recognize the father as his own child. In other words, it seems impossible to receive abuse from the father who has already suffered such pain. Therefore, rather than preventing the way of action of denial of the father by law, the law opens the way, such as the German law, which provides that a person may file a lawsuit of denial of the father at any time when he knows that he is not his own father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's husband's husband's husband's wife's husband's husband's husband's husband's wife's husband's wife's husband's wife's husband's wife's husband's husband's husband's husband's husband's child's husband's child's child's husband's

It is difficult to say that it is actually consistent with the principle of balance of legal interests, which is an element of the principle of excessive prohibition, because it is limited to the prompt determination of the status of a person.

In other words, the status of a person who is not the blood ties of the father is to be removed from the original wrong one in principle, and the status of the father is to be protected and recovered in principle, but the status of the father is to be protected and recovered in principle. However, even though a certain period of time that cannot be attributed to the father has passed, it is based on the weighing of erroneous legal interests that the father does not provide the father with an opportunity to bring an action of denial of paternity for the benefit of the child and thus causes severe mental distress and damage to the father as seen above. As seen above, it is based on the balancing of legal interests, which is to protect the wrong position to be removed in principle, and to unilaterally protect the legitimate position to be recovered and remedy. Accordingly, the legislation that does not provide an opportunity to bring an action of denial of paternity at all when a certain period of time has passed without recognizing the person who is not the father of the father is in violation of the principle of excessive prohibition and is unconstitutional

F. For the foregoing reasons, I express my Concurrence with the Majority Opinion.

6. Dissenting Opinion by Justice Cho Jong-soo

나는 우리재판소가 6차에 걸쳐 행한 헌법불합치의 각 결정들〔1989.9. 8. 선고, 88헌가6 ;1991. 3. 11. 선고, 91헌마21 ;1993. 3. 11. 선고, 88헌마5 ;1994. 7. 29. 선고, 92헌바49 ·52(병합);1995. 9. 28. 선고, 92헌가11 , 93헌가8 ·9·10(병합);1995. 11. 30. 선고, 91헌바1 ·2·3·4, 92헌바17 ·37, 94헌바34 ·44·45·48, 95헌바12 ·17(병합) 각 결정〕에 관하여

As to the majority opinion that has been maintained without changing precedents, the above precedents should be modified to the purport that the simple declaration of unconstitutionality should be made. The reasons therefor are as follows: (a) the above 92Hun-Ga11, 93Hun-Ga8, 93Hun-Ga8, 186(1) of the Patent Act; (b) the recommendation of unconstitutionality of Article 186(1) of the Patent Act; (c) 91Hun-Ba1, 2, 3, 42Hun-Ba17, 37, 94Hun-Ba34, 44, 45, 95Hun-Ba34, 48, 95Hun-Ba12 and 17 of the Income Tax Act; and (d) Article 23(4) of the former Income Tax Act are written in detail

A. Summary of the cited part

First, the Constitutional Court's ruling of inconsistency with the Constitution violates Article 111 (1) 1 and 5 of the Constitution, and Articles 45 and 47 (2) of the Constitutional Court Act.

Second, while the above precedents and the majority opinion try to establish the precedents of inconsistency with the Constitution by accepting the precedents of the German Constitutional Court, Germany and our legislation are different, so they cannot be accepted as they are.

After the Constitutional Court of Germany established a ruling of inconsistency with the Constitution in the fourth amendment in 1970 as a precedent, it established the basis for such decision. Article 78 of the same Act prior to the amendment provides that “Where the Federal Constitutional Court of Germany is satisfied that the annual method is not consistent with the Framework Act, or with the Framework Act or any other method of law, the Federal Constitutional Court shall declare the invalidation of the law (unconstitutional declaration). Where other provisions of the same Act are not consistent with the Framework Act or any other method of law for the same reason, the Federal Constitutional Court may declare the invalidation of the law, just as in the case of the same reason, that “if there is a conviction that the provision is not in conformity with the basic Act or any other method of law, the Federal Constitutional Court may declare the invalidation of the law.”

However, our Constitutional Court Act has a provision that "limited to the unconstitutionality" or "limited to the unconstitutionality" or "limited to the unconstitutionality" or "limited to the unconstitutionality" or "limited to the unconstitutionality" or "limited to the unconstitutionality", in consideration of other circumstances, if there is a petition that the declaration of invalidation of a law or a provision of a law can not be the unconstitutionality or constitutionality, it shall not have any provision sufficient to interpret that a decision other than the unconstitutionality or constitutionality can be made, and no provision of our Constitution or the Constitutional Court Act does not use the term "no unconstitutionality" or "no unconstitutionality."

Article 79 of the Constitutional Court Act prior to the above amendment of Germany recognizes, in principle, retroactive effect on the invalidation of a law or a provision of a law in accordance with the decision of the Constitutional Court and recognizes exceptions only to specific cases. However, our case only stipulates future effects on the invalidation of all law or a provision of a law except the law or a provision of a law, as seen earlier.

Therefore, in the case of Germany, there is no need to establish a precedent of inconsistency with the Constitution of the Republic of Korea, since there is much more serious and more serious gap in the legal norms that can arise when the law becomes null and void due to the declaration of invalidation (unconstitutionality) of the law, and there is no possibility that there is a situation that harms the legal stability, such as a gap in the legal norms that the majority opinion concerns under our legal system, namely, where the invalidation of the law or the legal provisions becomes effective in the future, and there is no possibility that there is no possibility that such serious situation may occur even if the retroactive effect of the pertinent case is recognized, there is no concern about such serious situation.

Therefore, as in the majority opinion, it is against the Constitution and the law, and there is no need to accept the German precedents.

Third, in the course of establishing the precedents and the legislative process of Germany, the establishment of the precedents does not go against the express provisions of the Constitution or the Constitutional Court Act, and rather, there is a basis provision (Article 78 and Article 79 of the Constitutional Court Act before the fourth amendment) in the interpretation, and the above precedents have been established in order to resolve the gap in serious legal norms caused by the decision of the Constitutional Court, in principle, and then have been resolved legislatively thereafter. Thus, there is no legal basis for the Constitution, the Constitutional Court Act, and other laws of the Constitutional Court, and there is no circumstance to go through the above process, the case of Germany is smaller than that of Germany.However, even if our Court is proceeding six times more than six times, it is criticized that it accepted the German German precedents without thoroughly taking a serious research and analysis.

Fourth, the legislative intent of Articles 45 and 47 of the Korean Constitutional Court Act was to exclude any decision that justify the authoritativeism due to the provisional application of laws and regulations in the past authoritative era from the point of 1961 to 198 as much as it is impossible to compare the development of Germany's democracy. In this case, the Constitutional Court's decision on the constitutionality of the Constitution and the Constitutional Court's decision on the constitutionality of the Constitution can only be made, and any other decision may not be made. In this case, even if there is any suspicion, it would rather go against the constitutional principles and principles, which would result in going against the constitutional principles and principles.

In order to alleviate, since only the future effects of the law or the provision of the law that has been invalidated against the case of Germany are stipulated, the modified decision that is inconsistent with the Constitution cannot be allowed in light of the legislative intent.

B. Even if based on the view that the ruling of inconsistency with the Constitution is permissible under our Constitution, this case is not a case where the declaration of inconsistency with the Constitution can be made, and thus, a simple declaration of unconstitutionality should be made.

The Majority Opinion argues that, on the grounds that the ruling of inconsistency with the Constitution should be rendered, if a simple declaration of inconsistency with the Constitution is made, the limitation of the limitation of the limitation period of the denial of paternity becomes temporarily nonexistent, and that, as a result, the recognition of the father-child relationship, which has been accepted by the interested parties as a status relationship who cannot be reversed as a result of the lapse of the extended period of time after the birth, may be re-written at any time until the amendment

However, even if the declaration of unconstitutionality is made, the provision of this case, which is subject to the adjudication, loses its effect from the date on which the declaration of unconstitutionality is made in accordance with the provision of the main sentence of Article 47(2) of the Constitutional Court Act, and thus, the limitation of the limitation period of the denial of paternity against a person born before the date on which the declaration of unconstitutionality is made, cannot be a legal blank situation. In other words, there is no concern that the restriction of the limitation period of the lawsuit of denial of paternity against a person born before the date of the declaration of unconstitutionality may not be a legal blank situation. In other words, if a person was born after the date on which the amendment is made and before the date on which the amendment is made is made, there is no concern that the restriction of the limitation period of the lawsuit of denial of paternity against the person born after the expiration of the limitation period

It is anticipated that the period until the amendment becomes unconstitutional after the decision of unconstitutionality will be a longer period of time (i.e., the legislation that is consistent with the Constitution may be instituted within one year from the time when the father becomes aware that there is no parental relation between the father and the father, but even in that case, it cannot be brought unless there are special circumstances after five years have passed since the child's birth. The majority opinion concerns that the period of the amendment legislation is expected to be five years after the decision of unconstitutionality, but there is concern about legal gap. However, the Constitutional Court's decision of unconstitutionality, non-conformity with the Constitution, and partial constitutionality with the Constitution cannot be expected that the period of the amendment legislation would be a longer period of time since it cannot be expected that the legislative institution's legislative practice with respect to the relevant law or provisions after the decision of unconstitutionality is the legislative practice with respect to the amendment of the law. Therefore, the above legal gap is serious enough to undermine the stability of the law. Therefore, the majority opinion's decision of unconstitutionality cannot be ruled as a decision of unconstitutionality.

C. Conclusion

As seen above, as a decision of inconsistency with the Constitution, each of the above precedents should be modified, and even if not, at least, a simple decision of unconstitutionality should be made.

March 27, 1997

Judges

Justices Kim Yong-han

Justices Kim Jin-jin

Justices Kim Jong-hee

Justices Yellow-do et al.

Justice Lee Jae-hwan

Justices Cho Jong-soo

Note General Justice Park Jong-young

Justices Senior High-ranking

Justice Shin Chang-ho

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