[1] The requirements to bring effect into force as an adoption report where a party has reported the birth of a natural father as an adoption intention

[2] In a case where the status relationship corresponding to the act of null and void reporting between the parties does not substantially form such status relationship, whether the declaration of ratification of an invalid status may be recognized by the declaration of intent alone (negative)

[3] The case denying the validity of the adoption report as an adoption report on the ground that it cannot be deemed that the biological parent did not continue to have a personal life record as an adoptive parent, such as care and custody, and child care, and that it is difficult for the person who reported as a biological parent to have implicitly ratified the birth report in lieu of the adoption

[1] The report of birth of a natural parent as the intent of the parties to establish a adoptive parent-child relationship, and if the actual requirements of adoption are met, the adoption takes effect even if the adoption were committed in the form thereof, and the adoptive parent-child relationship has the same contents as that of the adoptive parent-child relationship in law except for those that can be resolved by the dissolution of adoptive relation. Therefore, the report of birth of a natural parent-child relationship in this case has the function of the report of adoption to publicly announce the adoptive parent-child relationship under the law. However, an agreement of adoption is reached to determine that the actual requirements of adoption are met. However, there must be an agreement of adoption to determine that there is the actual requirements of adoption, a person under the age of 15 is the legal representative, and the adoption is not the existence or extension of the adoptive parent-child relationship, and there must be no grounds for invalidation of adoption under each subparagraph of Article 83 of the Civil Act, such as care, custody, etc., and thus, it shall not be effective if it fails to meet the above requirements.

[2] Even if a natural father's report of adoption does not take effect as an adoption report because it does not meet the actual requirements of adoption at the time of the report of birth, if the adoption does not take effect thereafter, the report of birth as an invalid natural father shall take effect retroactively. However, although the main text of Article 139 of the Civil Act provides that a null and void legal act does not take effect even if ratification is ratified, it is invalid to recognize retroactive effect by ratification without applying the provision regarding the adoption. If a legal act is null and void and the status relationship corresponding to the contents is actually formed, and both parties have continued to take effect without objection, denying the effect of the status relationship already formed on the ground that such report is unlawful is contrary to the intention of the parties, and it is likely to infringe on the interests of a third party, and thus, it is reasonable to protect the fundamental elements of the status relationship, such as the formation of the status relationship by recognizing the effect retroactively by ratification of the actual status relationship and the interest of the third party. Therefore, in cases where there is no substantial formation corresponding to the null and void status report between the parties, it cannot be recognized as invalid.

[3] The case denying the validity of the adoption report as an adoption report on the ground that it cannot be deemed that the biological parent's actual conditions were met since the birth report was not continued as an adoptive parent, such as care and custody, rearing, etc., and that it is difficult for the person who reported as the natural father to have implicitly ratified the birth report in lieu of the adoption

[1] Articles 878 and 883 of the Civil Act / [2] Articles 139 and 878 of the Civil Act / [3] Article 878 of the Civil Act

[1] [2] Supreme Court Decision 9Meu1633, 1640 decided Jun. 9, 200 (Gong2000Ha, 1654) / [2] Supreme Court Decision 91Meu30 decided Dec. 27, 1991 (Gong192, 782)

[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant

Busan District Court Decision 2004Reu75 delivered on June 24, 2004

The part of the judgment of the court below regarding the claim for confirmation of paternity between the deceased Nonparty and the Defendant is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The lower court’s recognition and judgment

According to the reasoning of the judgment below, the court below found that the deceased's birth report was completed on May 13, 1966 by the deceased's father and the co-defendants of the court of first instance, and the plaintiff was the father's children. The deceased's birth report was made on February 5, 1985, under the name of the deceased who was left before the mother's death located in Busan Shipping Daegu (hereinafter referred to as the "the deceased"), and without the consent of the co-defendants of the court of first instance, the birth report was made on March 5, 1985 as the deceased's father's father's father's child birth report was cancelled as the birth report of the deceased's father's father's father's father's child birth report, but it was not possible to raise the deceased's father's father's father's father's father's child birth report on May 14, 198, and thus, the deceased's father's father's father's birth report was not unlawful.

2. The judgment of this Court

However, this decision of the court below is hard to accept in the following respects.

A report of birth of a natural parent as the intent of the parties to establish a adoptive parent-child relationship and if the actual requirements of adoption are met, the adoption becomes effective even if the adoption was made in the form of a mistake, and, except that the adoptive parent-child relationship can be resolved by the dissolution of the adoptive relation, it has the same content as the biological parent-child relationship. Thus, the report of birth of a natural parent-child in this case has the same function as the adoption report (see Supreme Court en banc Decision 2000Meu1493 delivered on May 24, 2001, Supreme Court Decision 2003Meu268 delivered on May 27, 2004, etc.). However, in order to determine that the actual requirements of adoption are satisfied, there is an agreement on adoption. A person under 15 years of age should be the legal representative of the adoptive parent, the existence or extension of the adoptive parent-child relationship should not be deemed to have the effect of adoption report as a child-child-child-child report under Article 883 of the Civil Act.

However, even if the birth report does not take effect as an adoption report because it does not meet the actual requirements of adoption at the time of the report of birth, if the report of the natural father's birth does not take effect thereafter, it shall have the effect as an adoption report retroactively. However, even though the main sentence of Article 139 of the Civil Act provides that a null and void legal act does not take effect even if ratification is ratified, it is invalid to recognize retroactive effect by ratification without applying the provisions regarding the adoption act. If, after the act of an invalid status, the status relationship corresponding to the contents is formed substantially and both parties continue to take effect without objection, denying the validity of the existing status relationship formed on the ground that such report is unlawful is contrary to the intention of the parties, and it is reasonable to protect the essential elements of the status relationship, such as the formation of the status relationship by recognizing the effect retroactively by ratification of the actual status relationship and the interests of a third party in trust of the entry in the family register, and thus, it is reasonable to acknowledge the validity of the above act of null and void.

Therefore, in a case where a person under 15 years of age who was adopted by the birth report as a natural father without consent as prescribed in Article 869 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 199), continues to have adopted the child even after he/she reached 15 years of age, and satisfies substantial requirements for adoption such as living as the parent, the person who was reported as the natural father shall be deemed to have ratified the birth report in lieu of the adoption made by the other party after he/she reached 15 years of age, and shall be deemed to have the effect as an adoption report retroactively (see Supreme Court Decisions 89Meu389, Mar. 9, 199; 96Meu151, Jul. 11, 1997; 201Meu154, Jun. 14, 2002; 205) and where the other party cannot be deemed to have known as an adoption report as the adoptive parent's child and thus, the other party cannot be seen as an adoption report.

In light of the above legal principles, even if the defendant was unable to report the adoption of the deceased on February 5, 1985, he was left alone before and after his adoption. The defendant's legal representative could not be seen as the birth report of the deceased on March 5, 1985. Furthermore, according to the records, it cannot be viewed that the adoption report took effect as the birth report of the deceased, even if he was the birth report of the deceased on March 5, 1985. The defendant could not be seen as the birth report of the deceased on March 5, 1985, who was registered as the birth report of the deceased on May 19, 198, and was registered as the birth report of the deceased on May 19, 200, and the defendant could not be viewed as the birth report of the deceased on his own as the birth report of the deceased on May 1, 205. The defendant's birth report of the deceased on his own as the birth report of the deceased on his part of the deceased, who was registered as the birth report of the deceased.

Nevertheless, the court below did not examine whether the deceased and the defendant continue to meet the substantial requirements for adoption, such as the status status as adoptive parents, and whether there is any circumstance to deem that the defendant impliedly ratified the birth report made by the deceased after the age of 15, and judged that the adoption was effective by the birth report by the natural father of the deceased, who was the natural father of the deceased after the age of 15. Thus, the court below did not err by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on the validity of adoption and implied ratification, which affected the conclusion of the judgment, and therefore, the ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for confirmation of paternity between the deceased and the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)