If it is apparent that the wife is unable to capture the father's child, the filing of an action to confirm the existence of the father's father's father's father.

Article 844 of the Civil Act provides that Article 844 shall apply to cases where a husband was born while the wife was living together and the wife was able to capture the father's child, and it shall be determined that there is any apparent circumstance that the wife is unable to capture the father due to the lack of a document, such as a case where the husband's wife's separation is made by a de facto divorce. Therefore, in this case, a person may file a lawsuit seeking confirmation of the existence of the father's father-child relationship under Articles 865 and 863 of the Civil Act.

Articles 844, 865, and 863 of the Civil Act

A. Supreme Court en banc Decision 82Meu59 delivered on July 12, 1983

Claimant

appellees

Seoul High Court Decision 87Reu253 delivered on December 14, 1987

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

With respect to No. 1:

According to Articles 844, 846, and 847 of the Civil Act, if the wife who was born during marriage is presumed to be the father, and if the wife intends to deny the paternity, only the father may bring an action of denial of paternity. However, Article 844 of the Civil Act applies to the case where the wife is born while the husband is living together and the wife is able to capture the father, or where the husband is actually divorced from one of the husband, or where it is apparent that the wife is unable to capture the father due to lack of the document, it shall be presumed that there is no presumption. Thus, under Articles 865 and 863 of the Civil Act, the wife may bring an action for confirmation of the existence of the father's father-child relationship (see Supreme Court Decision 82Meu59 delivered on July 12, 1983).

Therefore, as determined by the court below, if the non-party 1 and the non-party 2 who was the husband of the non-party 1 who was married agree on divorce and the non-party 1 who was the husband of the non-party 2 were arrested during the long-term separate period of time, it is legitimate for the claimant to confirm that there is no parental relation between the non-party 2 and the non-party 2 (the Suwon District Court Decision 85d750) and to claim recognition of this case

In addition, even if an appellant filed a claim against the respondent prior to the judgment of confirmation of existence of paternity, but the claimant was born during marriage between the claimant and the non-claim 1 and presumed to be the natural father of the non-claim 2, and the presumption is presumed not to be broken by the action of denial of paternity by the non-claim 2, and thus the above action of denial of paternity cannot be filed against the respondent (Seoul Family Court Decision 78Reu458 decided) was rendered and confirmed, and the judgment of rejection of the above action of denial of paternity was made final and conclusive, the res judicata effect of the judgment does not extend to the lawsuit of confirmation of existence of paternity on the ground that the non-claim 1 and the non-claim 2 were born during a prolonged period of time.

In the same purport, the decision of the court below that the appellant can make a request for recognition of the instant case is just and there is no error of law as otherwise alleged.

With respect to the second ground:

According to the reasoning of the judgment below, while the non-party 1 married with the non-party 1 on October 12, 1949 and the non-party 1 married with the non-party 2 on September 28, 1961, the court below, in fact, has agreed to divorce from August 1952, 1952, and confirmed the fact that the defendant gave birth of the appellant from August 6, 1956 while entering into a mutual relationship with the respondent from August 1955, while the non-party 1 was married with the non-party 1 on September 12, 1949, the court below's fact-finding by the court below is just and persuasive, and there is no violation of law by

In light of the records, it is not recognized that the defendant was in a status of a woman or a window when establishing a relationship between the defendant and the non-party 1, and as long as the defendant can confirm the facts born between the non-party 1 and the defendant, the non-party 1 was the same status as the non-party 1, and it does not deny the claimant's claim for recognition. The argument is groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-chul (Presiding Justice)