[1] In a case where the birth report of a natural father as an intention of adoption has been made and the actual requirements of adoption have been met, whether adoption takes effect (affirmative)

[2] In a case where the birth report of the natural father has an effect of adoption, whether there is a benefit in filing a lawsuit seeking confirmation of existence of paternity in lieu of a judicial dissolution of adoptive relationship between one parent and the other parent who is surviving one after the death of the adoptive parent (negative)

[1] Where the parties have an obvious intent to establish a adoptive parent relationship and the actual requirements for the adoption are met, if the report of birth of the natural father is made instead of the report of adoption, the adoption is effective even if it is somewhat erroneous in the form of the report.

[2] Article 874(1) of the Civil Act provides that "if a spouse is to adopt a child, the child shall be jointly adopted with the spouse." Although there is no separate provision regarding dissolution of the adoptive relationship, it is not possible for the adoptive parent to interpret that the adoptive parent should jointly take place when the adoptive parent is dissolved (in cases where the child is a minor, it is necessary to interpret such provision in light of the purport of the adopted system). However, even if such interpretation is made, there is no need to apply the principle of common relationship between the husband and the adoptive parent when one of the adoptive parents dies or the adoptive parent is divorced, the adoptive parent may independently reach an agreement with the adopted child or dissolution of the adoptive parent relationship, but the claim for cancellation of the adoptive parent relationship may not affect the adoptive parent relationship between the father and the adopted child. This is because there is no need to adopt the law that the adoptive parent relationship should be terminated, except for the claim for confirmation of the adoptive parent relationship between the father and the adopted child and the adopted child, the claim for annulment of the adoptive parent relationship cannot be made in lieu of the adoptive parent relationship.

[1] Article 878 of the Civil Act / [2] Articles 865, 874 (1), and 905 of the Civil Act

[1] [2] Supreme Court en banc Decision 200Meu1493 Decided May 24, 2001 (Gong2001Ha, 1392) decided Feb. 23, 198 (Gong198, 593) / [1] Supreme Court en banc Decision 77Da492 decided Jul. 26, 197 (Gong197, 10219), Supreme Court Decision 89Meu389 decided Mar. 9, 199 (Gong190, 886), Supreme Court Decision 96Meu151 decided Jul. 11, 197 (Gong197Ha, 2513)

Plaintiff

Defendant (Attorney Kim Dong-dong, Counsel for defendant-appellant)

Daejeon District Court Decision 9Reu157 delivered on November 12, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

In a case where the parties have an obvious intent to establish a adoptive parent-child relationship and the actual requirements for adoption are satisfied, if the birth report of the natural father-child exists instead of the adoption report, the adoption shall be deemed to have the effect even if it is somewhat erroneous in the form (see, e.g., Supreme Court en banc Decision 77Da492, Jul. 26, 197; Supreme Court Decision 89Meu389, Mar. 9, 199; Supreme Court Decision 96Meu151, Jul. 11, 197).

According to the reasoning of the judgment below, the court below found the facts based on the adopted evidence and found the facts of the judgment, and held that the non-party, the deceased non-party and the defendant did not have a friend parental relation, but the non-party and the plaintiff had the intent to adopt the defendant at the time of the report of birth as the father of the defendant, and that the report of birth against the defendant was effective since the defendant had the substantial requirements for adoption by implied ratification of the report of birth substituted for the above adoption after the age of 15. In light of the records, the court below's fact-finding and judgment are just in accordance with the above legal principles and there is no error of law such as violation of the rules of evidence and misunderstanding of legal principles

The ground of appeal on this part is without merit.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below held that, in cases where the report of birth of the natural father has the effect of the adoption report, the other party can seek the confirmation of the existence of the parental relation in addition to the grounds for the dissolution of adoptive relation in order to resolve it, the other party can actually claim the confirmation of the existence of the adoptive relation in addition to the existence of the grounds for dissolution of adoptive relation. Since the non-party who is both father and wife has already died, the adoptive relation cannot be dissolved, and the adoptive relation can only be established separately by both father and adoptive parent, and the dissolution of adoptive relation can only be done by only the other party. Thus, even if the plaintiff is the non-party's wife, the actual adoptive relation between the non-party and the defendant cannot be resolved because it can not be replaced or replaced by the other party's wife, and the adoptive relation has the same contents as the parental relation in law, except as the adoptive relation can be resolved by the dissolution of adoptive relation. Thus, even if there is no biological relation between the authorized member and the defendant, there is no actual benefit in seeking confirmation of the existence of the legal parent relation.

Article 874(1) of the Civil Act provides that "if a spouse is adopted, it shall be jointly adopted with the spouse." Although there is no separate provision regarding dissolution of the adoptive relation, in light of the purport of the provision of the principle of joint adoption of the married couple, there is no room to interpret that the adoptive parent should jointly be dissolved when the adoptive parent is dissolved as alleged in the grounds of appeal (in the case of a spouse, it is necessary to interpret it as above in light of the purport of the bilateral adoption system). However, even if such interpretation is made, there is no room to apply the principle of joint adoption of the married couple when either the adoptive parent dies or the adoptive parent is divorced.

Therefore, when both father and mother die, they may independently agree with the adopted child or dissolve the adoptive relationship, which may not affect the adoptive relationship between the adopted child and the adopted child, and cannot be replaced by, or dissolved for both father and mother's death. This is also the same in relation to the claim for confirmation of existence of the adoptive parent relationship in lieu of the so-called claim for confirmation of existence of the adoptive parent relationship, although the adoption is effective in the claim for confirmation of existence of the natural father's father's father's father's father's father's father's father's father's father'

This is because, except that the adoptive parent relationship can be resolved by the dissolution of the adoptive relation, the same content as the biological relation is equally equal to the biological relation. As seen earlier, as seen in the above, the entry of the family register as a natural father who does not fit the truth in this case came to have the effect of disclosing the adoptive parent relationship, which is the legal parent relationship, and there is no way to resolve such adoptive parent relationship between the deceased non-party and the defendant, and thus, the claim for denial of the legal parent-child relationship is not allowed (see Supreme Court Decision 85Meu86, Feb. 23, 198).

In the same purport, the judgment of the court below which rejected the claim for confirmation of existence of paternity between the deceased Nonparty and the defendant on the ground that there is no benefit of confirmation is just and there is no error of law by misapprehending the legal principles as to the benefit of the claim for confirmation of existence of paternity.

This part of the grounds of appeal is without merit.

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

Justices Seo-sung (Presiding Justice)