In cases where the birth report of a natural father has an effect of adoption, whether there is a benefit to bring an action for confirmation of paternity or existence in place of judicial dissolution in order to resolve the adoptive relationship between one parent and the adopted child who is surviving one of the adoptive parents who died after the death of the other parent (negative)

Articles 138, 865, 874(1), and 878 of the Civil Act

Supreme Court en banc Decision 200Meu1493 Decided May 24, 2001 (Gong2001Ha, 1392) Supreme Court Decision 99Meu2230 Decided August 21, 2001 (Gong2001Ha, 2073)

Plaintiff (Attorney Byung-il et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Bag, Attorneys Ham- business et al., Counsel for the defendant-appellant)

Seoul Family Court Decision 2008Reu1782 decided December 5, 2008

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

We examine ex officio.

Article 874(1) of the Civil Act declares the principle of common adoption of the married couple. Although there is no separate provision regarding dissolution of adoptive relations, in light of the purport of the principle of common adoption of the married couple, there is no room to interpret that the adoptive parent should jointly exist when the adoptive parent is dissolved (in the case of the married couple, it is necessary to interpret it as above in light of the purport of the adopted child system). However, even if the adoptive parent is a minor, when one of the married couple dies or her adoptive parent is divorced, there is no room to apply the principle of common adoption of the married couple. Therefore, when both father and mother are dead, they may independently and separately, and they may not affect the adoptive parent relationship between both father and the two, and they may not be dissolved for both father and the other father or for the other father. This is because it is not consistent with the principle of common adoption of the adoptive parent relationship that is necessary to dissolve the adoptive parent relationship due to the grounds for the dissolution of the adoptive parent relationship, it is not consistent with the principle of denial of the adoptive parent relationship as the adoptive parent relationship.

According to the facts duly established by the court below and the records, the report of the marriage on January 4, 1957, when Nonparty 1 was living with Nonparty 2 while raising the defendant, and on the same day, the report of the birth of the defendant to his father was derived from the intention to adopt and foster the defendant at the time. Since the marital relationship with Nonparty 2 continues to exist until the divorce was made with Nonparty 2 on July 15, 1964, the actual requirements of adoption were met. Thus, the report of birth against the defendant was effective as an adoption report, even if the form was erroneous, and the two father relationship was established between the defendant and Nonparty 1. Accordingly, Nonparty 1 died on January 30, 2006, and thereafter, the plaintiff, who was Nonparty 1, as his child, sought confirmation of the existence of parental relation between Nonparty 1 and the defendant, instead of the actual causes for the dissolution of the adoptive relation.

Therefore, the court below should have dismissed the plaintiff's claim on the ground that the plaintiff's action seeking confirmation of existence of paternity in lieu of or in lieu of the deceased non-party 1 or in lieu of the judicial dissolution is unlawful because there is no benefit in confirmation. However, the court below determined the existence of grounds for judicial dissolution and accepted the plaintiff's claim. The court below erred by misapprehending the legal principles on the benefit in confirmation of existence of paternity in lieu of judicial dissolution, which affected the conclusion of judgment

Therefore, the judgment of the court below shall be reversed without examining the grounds of appeal. Since the Supreme Court in this case is sufficient to directly render a judgment, the judgment of the court of first instance shall be revoked and the lawsuit in this case shall be dismissed, and the total costs of the lawsuit shall be borne by the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)