[1] In a case where a third party who has an interest pursuant to Article 865 of the Civil Act claims confirmation of the absence of paternity, eligibility for the defendant / Whether the lawsuit against the deceased party is terminated in a case where the deceased party dies on the one hand during the continuance of the litigation seeking confirmation of the absence of paternity brought by the third party against both children (affirmative)

[2] Whether adoption can be recognized in cases where the birth report of the natural father of an adoption was made with the intention of adoption and the actual requirements of adoption were met (affirmative)

[3] In a case where Gap et al. and Eul et al were able to find out the family register of Eul, Eul et al. and reported the birth of Byung, and Eul et al. filed a claim against Byung for confirmation of non-existence of parental relation between Byung and Byung, the case holding that the court below erred by misapprehending the legal principles in holding that the adoptive parent relationship between Gap and Byung cannot be established

[1] Where a third party who has an interest under Article 865 of the Civil Act claims confirmation of the absence of a parental relation, both of the parents shall be the defendant, and where either of the parents dies, only the survivor shall be the defendant, and where all of the parents dies, a lawsuit may be brought against the prosecutor. A lawsuit seeking confirmation of the existence of a parental relation shall be brought against the third party. Since a lawsuit seeking confirmation of the absence of a parental relation against both of the parents is bound by the law of the first instance, a lawsuit seeking confirmation of the existence of a parental relation against the third party shall be brought against the deceased party, only the surviving party shall be the defendant, and the deceased's heir or prosecutor shall not take over the procedure. In this case, the lawsuit against the deceased person shall be terminated.

[2] The adoption is basically a legal act between the parties to the adoption. In the case of adoption under the former Civil Act (amended by Act No. 11300, Feb. 10, 2012), if the actual requirements of adoption are met, the adoption can be recognized even if it was erroneous in the form of reporting the birth of the natural father instead of reporting the adoption. The reason for demanding the form of “report” in an act of status such as adoption is to clarify and publicly announce the declaration of intent corresponding to the report between the parties. The false report of birth of the natural father clearly expresses the intention to establish the legal parent-child relationship between the parties and the adoption of the adoptive parent-child relationship can be resolved by the dissolution of the adoptive relation. Thus, the adoption report of the natural father-child can be deemed to function as a report of adoption by publicly announcing the existence of the legal parent-child relationship.

[3] The case holding that in a case where Gap and Eul et al. sought confirmation of non-existence of parental relation against Byung and Byung, Eul, et al., after considering Eul's care for a disease whose parents are unknown, Byung's family register was abolished and the family relation registration system was implemented, Eul et al.'s family relation register was entered into Eul, and Eul et al. claimed confirmation of non-existence of parental relation against Byung, Eul et al., the judgment below erred by misapprehending the legal principles on the ground that Gap and Byung did not have an intent to adopt Byung in the case of non-existence, invalidation, revocation, or dissolution of adoption between Eul and Byung, and there was no special circumstance that Eul did not have an intention to adopt Byung in the case of non-existence of adoption, invalidation, revocation, or dissolution of adoption between Eul and Byung, and since Eul did not have an intention to adopt the adoption, Eul's family relation register was entered into the family relation register as Eul's child, and Eul's family relation certificate was recorded as Byung's mother.

[1] Article 865 of the Civil Act, Article 16 of the Family Litigation Act / [2] Article 878 of the former Civil Act (Amended by Act No. 11300, Feb. 10, 2012) / [3] Article 865 of the Civil Act, Article 878 of the former Civil Act (Amended by Act No. 11300, Feb. 10, 2012)

[1] Supreme Court Order 83Meu25 Decided September 15, 1983 (Gong1983, 1589), Supreme Court Decision 2003Meu132 Decided May 30, 2003, Supreme Court Decision 2013Meu4201 Decided September 4, 2014 (Gong2014Ha, 2034) / [2] Supreme Court en banc Decision 77Da492 Decided July 26, 197 (Gong197, 10219), Supreme Court en banc Decision 97Meu25 Decided May 26, 1998 (Gong198Ha, 1760), Supreme Court en banc Decision 200Meu1493 Decided May 24, 2001 (GongGong139392)

Plaintiff 1 and one other (Attorneys Lee Dong-hwan et al., Counsel for the plaintiff-appellant)

Defendant and the deceased non-party 1’s taking over the lawsuit (Law Firm, Attorneys Gyeong-tae et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2013Reu3250 decided October 30, 2014

Of the judgment of the court below, the part of the claim against the defendant who is the deceased non-party 1's attorney-at-law. The lawsuit on this part was terminated on March 7, 2014 by Non-party 1's death. Of the judgment below, the part of the claim against the defendant by the plaintiff 2 is reversed, and that part of the case is remanded to Suwon District Court. The appeal against the plaintiff 1 is dismissed. The costs of appeal against the plaintiff 1 are assessed against the defendant.

1. We examine ex officio the part of the claim against the defendant who is the plaintiff 2's deceased non-party 1's attorney-at-law.

Pursuant to Article 865 of the Civil Act, where a third party who has an interest in a litigation seeking confirmation of the absence of paternity, both parents shall be the defendant (see Supreme Court Order 83 business2, Sept. 15, 1983; 83 business2, Sept. 15, 1983); where a child dies on the one hand, only the survivor shall be the defendant; and where the child dies on the other hand, the prosecutor may file a lawsuit against the deceased (see, e.g., Supreme Court Decision 2003Meu132, May 30, 2003). Since the subject matter of the litigation is one-way, the litigation seeking confirmation of paternity is bound by one-way (see, e.g., Supreme Court Decision 2013Meu4201, Sept. 4, 2014).

According to the records, the plaintiff 2 filed a claim against the non-party 1 and the defendant for confirmation of non-existence of paternity, and the court of the first instance accepted this claim, and only the defendant appealeded against the defendant, and the non-party 1 died on March 7, 2014 during the proceeding of the court below, and the plaintiff 2 changed the lawsuit to seek "the confirmation that there is no parental relation between the defendant and the deceased non-party 1".

Examining the above facts in light of the legal principles as seen earlier, the part of the claim against Nonparty 1, who was in a necessary co-litigation relationship with the Defendant, among Plaintiff 2’s claims, was also tried to the lower court. However, this part is deemed to have been terminated on March 7, 2014 due to Nonparty 1’s death.

Nevertheless, the court below erred by misapprehending the legal principles on the succession of litigation and the termination of litigation, which judged that the defendant taken over the deceased non-party 1 due to the death of the non-party 1 and that the part between the plaintiff 2 and the deceased non-party 1 is subject to adjudication.

2. We examine the grounds of appeal as to the part of the plaintiff 2's claim against the defendant.

A. Adoption is basically a juristic act between the parties to adoption (see Supreme Court Decision 97Meu25 delivered on May 26, 1998).

In the case of adoption under the former Civil Act (amended by Act No. 11300, Feb. 10, 2012), if the actual requirements of adoption are satisfied, the adoption may be deemed effective even in the event of a mistake in the form of a report of birth instead of a report of adoption. The reason for demanding the form of “report” in an act of status such as adoption is to clarify the existence of a declaration of intention corresponding to the report between the parties, and to publicly announce it outside. The false report of birth also means the declaration of intention to establish the legal parent-child relationship between the parties, and the adoptive parent relationship can be resolved by the dissolution of the adoptive relation. Thus, a false report of birth may be deemed to function as a report of adoption by publicly announcing the existence of the legal parent-child relationship (see, e.g., Supreme Court en banc Decision 77Da492, Jul. 26, 197; Supreme Court en banc Decision 200Meu1493, May 24, 2001).

B. The court below acknowledged the following facts: (a) the deceased non-party 1 did not have a child, and (b) the deceased non-party 1 was in a legal marital relationship with the plaintiff 1, who would be able to give birth; (c) around December 30, 1979, the deceased non-party 1 and the deceased non-party 1 sent the defendant as well as from the time when the father and the hospital knew of his parent; (d) the deceased non-party 1 and the deceased non-party 1 had the defendant enter the family register of the plaintiff 1; and (e) on December 29, 190, the defendant reported the birth as if they were born between the plaintiff 1 and the deceased non-party 1.

Furthermore, with respect to this part of the claim by Plaintiff 2, who is the deceased Nonparty 1’s birth, against the Defendant, seeking confirmation that there is no parental relation between the deceased Nonparty 1 and the Defendant, the lower court determined that the adoptive relation between the deceased Nonparty 1 and the Defendant could not be established on the grounds as indicated in its reasoning, while recognizing that the adoption was fully required between the deceased Nonparty 1 and the Defendant.

C. However, in light of the above legal principles, we cannot accept the above judgment of the court below for the following reasons.

1) As recognized by the lower court, the actual requirements of individual adoption between the deceased Nonparty 1 and the Defendant were fully satisfied.

2) If the deceased Nonparty 1 did not jointly become an adoptive parent with the Plaintiff 1, it would not be a mother solely, i.e., a doctor, i., the Plaintiff 1 and the Defendant in the event of failure, invalidation, revocation, or dissolution of the adoption, there is no special circumstance to deem that the deceased Nonparty 1 did not have the intent to adopt the Defendant.

3) On January 1, 2008, the family register system was abolished and implemented on January 1, 2008, and the Defendant was recorded as the deceased Nonparty 1’s child in the family register, and even the Defendant’s family registration certificate was also recorded as the Defendant’s mother.

D. Nevertheless, the lower court determined that a adoptive parent relationship cannot be established between the deceased non-party 1 and the Defendant, solely based on its stated reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of adoption as an individual legal act, the effect of birth report as the natural father’s father as an adoption, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. As to the part of Plaintiff 1’s claim, the Defendant did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the due time limit for filing the appellate brief.

4. Therefore, among the judgment of the court below, the part of the claim against the defendant, who is the taking-off of the plaintiff 2's deceased non-party 1's lawsuit, is reversed. Since this part is sufficient for the Supreme Court to directly judge, this Court directly decides that this part of the lawsuit concerning this part is terminated upon the death of non-party 1, and the part of the claim against the defendant by the plaintiff 2 is reversed and remanded to the court below. The appeal against the plaintiff 1 is dismissed, and the costs of appeal against the plaintiff 1 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)