[1] In a case where a registered person north of the Military Demarcation Line was a lineal descendant who succeeded to the status of the head of a household after the death of the head of a household and was lawfully taken, whether a separate family register, upon application by a lineal descendant of the head of a household, is subject to cancellation of a separate family register (affirmative), and whether the family register prepared on the basis of an unlawful double-defense

[2] In a case where Party A, a registered person north of the Military Demarcation Line, was filed an application for the establishment, etc. of a family relationship by asserting that his father’s name should be cancelled because it was recorded differently from the actual family register of Party B, even though his father’s name should be recorded differently in the family register of Party B, which was legally inherited by way of his parent’s South and North Korea, and that a legitimate family relationship should be established after closing his family relationship, the case reversing the order of the court below which upheld the first instance court’s decision rejecting the above application on the ground that the materials submitted by Party A, a party to the above application as the sole blood relative of Party A, were insufficient to acknowledge the assertion of false facts, on the ground that the materials submitted by Party B, such as the letter of credit guarantee, etc., did not p

[1] Articles 8, 116, 120, and 123 of the former Family Register Act (repealed by Article 2 of the Addenda to the Act on the Registration, etc. of Family Relationship, Act No. 8435 of May 17, 2007), Article 984 (4) of the former Civil Act (repealed by Act No. 7428 of March 31, 2005), Article 11 (2), Article 101, and Article 103 of the former Family Register Act, Article 17 (2) 2 of the former Rules on the Registration, etc. of Family Relationship / [2] Articles 8, 116, 120, and 123 of the Family Register Act, Article 20 of the Addenda to the Act on the Registration, etc. of Family Relationship, Article 130 of the former Family Relationship Act (Act No. 8435 of May 17, 2007), Article 213 (1) of the Addenda to the Civil Act (Article 2014)

Re-appellant

Seoul Family Court Order 2008BB11, 119 dated November 25, 2008

The order of the court below is reversed, and the case is remanded to the Seoul Family Court Panel Division.

The grounds of reappeal are examined.

1. Before the Act on the Registration, etc. of Family Relationship enters into force, the application for the entry permit by the person on the register of the person north of the Military Demarcation Line shall be filed by the head of the household or the person on the priority basis [see Article 4 of the Addenda of the former Family Register Act (wholly amended by Act No. 1238, Dec. 29, 1962)]. Therefore, in a case where the person on the register of the person on the register north of the Military Demarcation Line enters into the new register after the death of the head of the household, if the deceased family is a lineal descendant who succeeds to the status of the head of the household, only the family register formed in accordance with the application for the entry permit is lawful, and the female of the deceased lineal descendant of the head of the household shall not be filed with the application for the entry permit. Accordingly, even if the successor of the deceased family legally takes place,

In addition, even after the "Act on the Registration, etc. of Family Relationship" was enacted and the system of the family register was abolished, it should be abolished as it is also illegal because the family register based on the above illegal double-heading, and in such a case, the parties may create the family register through legitimate application procedures.

2. In this case, the Re-Appellant and Non-Appellant No. 1 asserted that the Re-Appellant and Non-Appellant No. 1 have to be organized in the non-Appellant No. 1's family register, and thus, the Re-Appellant's family register should be cancelled. Accordingly, the Re-Appellant's family registration based on the illegal family register should be closed and a legitimate family relation registration should be created.

After finding the facts as stated in its holding, the court below rejected the Re-Appellant's assertion on the ground that the Re-Appellant's actual father was named as "non-applicant 3" due to mistake in the course of action, even though the Re-Appellant's father was "non-applicant 2", and eventually, the court below maintained the first instance court's decision dismissing the application of this case.

3. However, we cannot accept the above judgment of the court below as it is.

According to the order of the court below and records, the re-appellant was born on January 15, 1964 as the person north of the Military Demarcation Line, his father and 3, and 4, and was taken on January 15, 1964. Meanwhile, the non-applicant 1 was born on June 5, 1938 as the person registered in the area north of the Military Demarcation Line, and entered her original domicile, but his father and 2, her mother were the son non-applicant 4, and the non-applicant 1 was the son non-applicant 2, and 1 was the son non-applicant's father and 2, who was Australia on September 4, 1957. The non-applicant 1 was found to be the same maternal blood relative, and his mother and 1, who were registered in the non-applicant's family registry, was found to be the 5-year non-applicant's non-applicant's non-applicant's non-applicant's non-applicant's family name and 1, who was the her father's non-party 1.

In light of the above various circumstances, in this case where the non-party 1, who is the only blood relative of the re-appellant, who can be the interested party of the application of this case, does not have any circumstance to make a false assertion, the credibility of the contents of the letter of credit guarantee for non-party 1 cannot be easily rejected, and according to the contents of the letter of credit guarantee, it is reasonable to view that the father of the re-appellant was written by non-party 2, the non-party 1's father, as argued by the re-appellant, and the non-party 3's mistake in his personal name in his personal registration process. If this issue is a matter, the family register due to his personal registration should be cancelled illegally in light of the above legal principles, the family register of the re-appellant should also be closed, and the family relation register of the re-appellant based on this should also be possible when the re-appellant establishes a legitimate family relation register under the legitimate procedure of application.

Nevertheless, the court below's determination that the materials submitted by the re-appellant alone are insufficient to recognize the facts asserted by the re-appellant and maintained the first instance court which rejected all of the re-appellant's claims is erroneous in finding facts beyond the limit of the principle of free evaluation of evidence and thereby adversely affected the conclusion of the judgment. The purport of the appeal

4. Therefore, the order of the court below is reversed, and 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 Ji-hyung (Presiding Justice)