The case holding that, even if there was an agreement of the surrogate mother, visitation rights for a child of the non-child care-child have been recognized as a astronomical right and visitation rights have been acknowledged, as alleged by the child care-child.

The case holding that the visitation right should be recognized on the ground that the agreement between the parties excluding the whole of the rights is invalid as a juristic act with respect to matters contrary to good morals and other social order under Article 103 of the Civil Act, even if the non-nurbing parent was pregnant and gave birth to the child pursuant to the substitute mother agreement that "the non-nurbing parent will give money to the child" and divorce, as alleged by the child-nurbing parent.

Article 837-2 of the Civil Act

Claimant (Attorney Sora, Counsel for defendant-appellant)

Other Party

The principal of the case and one other

An intervenor;

Seoul Family Court Decision 2007Hu8832 dated January 15, 2009

1. The other party's appeal is dismissed;

2. Costs of appeal shall be borne by the other party.

1. Purport of claim

The person with parental authority and the custodian for the principal of the case shall be changed to the claimant, the other party shall deliver the principal of the case to the claimant, and the other party shall pay 50,000 won each month from the time of delivery of the principal of the case to the time the principal of the case becomes adult.

2. Purport of appeal;

The decision of visitation among the original adjudication shall be revoked.

1. Scope of the judgment of this court;

The first instance court dismissed all of the claimant's claims, and ex officio, the applicant made the visitation right decision with the purport that "the applicant may visit the principal of the case at his domicile from 2 p.m. on the first Saturday to 6 p.m. on the same day." Since the claimant does not appeal and only the interview decision of the first instance court was filed by the other party, the subject of the judgment of this court is limited to the interview decision of the first instance court. Accordingly, the subject of the judgment of this court is limited to this part.

2. Facts of recognition;

According to the records, the following facts can be acknowledged.

A. Although the other party and the intervenor were married on November 4, 1982, the two parties reported the divorce on July 11, 2003, in order to have no child between them, and the other party thereafter reported the divorce on August 11, 2003. On August 2003, the other party completed the marriage report between the claimant and the claimant on October 13, 2003. The claimant entered Korea on October 25, 2003 and was living together with the other party.

B. On July 20, 2005, after giving birth to the principal of the case, the claimant and the other party gave birth to the principal of the case. On July 20, 2005, after giving birth to the principal of the case, the parties reported the divorce (designated as the person in parental authority and the person in parental authority of the principal of the case as the other party). On August 17, 2005,

C. Meanwhile, prior to the month in which the other party gave birth to the principal of the case, the other party claimed that the intervenor would raise the son, and the intervenor accepted the case. The claimant gave birth to the principal of the case, and the other party gave birth to the principal of the case, and the other party took care of the principal of the case to the intervenor.

D. After that, on September 3, 2004, the claimant visited the parent of Vietnam, and the other party paid USD 7,000 to the claimant, and the other party also left on September 23, 2004 and remains together with the claimant in Vietnam on September 27, 2004.

E. After having returned from Vietnam, the claimant was pregnant the principal 2 of the case immediately. The claimant demanded that the other party whose childbirth was the injured party divorced the claimant. After that, the claimant was given birth of the principal 2 of the case, the claimant was immediately able to refer to the principal 1 of the case.

F. Meanwhile, the claimant agreed to divorce between the other party and the other party immediately after giving birth to the principal 2 of the case, and around that time, the claimant received USD 20,00 from the other party, and left Vietnam on July 21, 2005.

G. However, on August 23, 2005, the claimant returned to Korea and became the other party, and the other party presented the case principal 1 several times to the claimant, and the claimant again left Vietnam on September 27, 2005 and returned to Vietnam again on October 2005, but the other party did not contact the principal of the case since he did not contact with the other party on the wind to change the telephone number around November 2005.

H. The other party and the intervenor are receiving KRW 10,000,000 per month as they are under clothes in Yongsan, and the principal of the case is currently raising by the other party and the intervenor together, and the intervenor is aware of the intervenor's friendship, and the other party and the intervenor also look closely about the principal of the case in cooperation with the intervenor.

(i)the other party currently attends the factory and has revenue of KRW 120,000 per month.

3. The allegations of the other party and the judgment thereof

A. The assertion

If the principal of the case is aware of the intervenor's birth, the other party permitted the visitation right of the petitioner, causing emotional confusion to the principal of the case, and caused serious adverse effects on the principal of the case. ② The claimant, in fact, wishes to interview the principal of the case with no interest in the interview, and receive money from the other party from time to time by taking advantage of the visitation right, ③ the illegal immigrants in Vietnam, such as male-gu, etc. of the claimant, threaten the other party from time to time to time and threaten the life of the other party and his family. ④ On October 2003, 2003, the other party following the marriage with the claimant, proposed that "the other party will raise a child and deliver the money to the applicant." The claimant accepted the above proposal and gave birth to the principal of the case, and the other party agreed to do so.

(b) Markets:

First of all, the facts that ① the principal of the case is aware of the present intervenor's friendly relationship with the intervenor, and the other party and the intervenor are also about the principal of the case.

However, if the principal of this case grow, it would be difficult to recognize that the father is a claimant due to the family relation register (which is registered in the family relation register as the mother's mother) and the neighbors, and it would be difficult for the claimant to submit it as confidential at any time, and gradually, it would be more helpful for the claimant to gradually form a natural relationship through interview with the principal of this case in the future through the interview right, such as confusion in the identity of the principal of this case, and the principal of this case has the right to know who is the father's mother, and regularly has the right to maintain friendship and interview right, as determined in the original trial, it seems that the interview right more than once a month will be shown in the long term for the smooth growth of the principal of this case and the formation of personality.

Therefore, the chief of the claim is without merit.

Next, according to the report on investigation of the family affairs investigator in this case, it is deemed that the applicant's pro-Japanese male in Vietnam was called to the other party about October 2008, but the above fact alone is insufficient to recognize the fact that the applicant requested the visitation right in his/her idea to demand money and other valuables, or that there is a threat to the life of the other party and his/her family by threatening the other party by threatening the other party, and there is no other evidence to acknowledge it otherwise.

Therefore, this part of the argument is without merit.

(The original adjudication has determined that the principal of the case should be contacted only at the domicile of the other party, so there is no concern for the claimant to refuse to deliver the principal of the case after the contact with the principal in another place).

Finally, it is insufficient to recognize that the claimant accepted the above proposal and gave birth to the principal of this case. The fact that the principal of this case is not sufficient to recognize that the principal of this case was pregnant and given birth.

Even if there was such a surrogate mother agreement as mentioned above, it is difficult to see that the contents of the visitation right of the claimant are included in the above agreement, and even if such contents are included, in Korea, there are no relevant legal regulations related to the surrogate mother, so it should be reviewed in accordance with the current Civil Code. Therefore, the visitation right of the non-nurt parent's children is a astronomical right, and the agreement between the parties excluding such right is invalid as a juristic act with contents that violate good morals and other social order under Article 103 of the Civil Code.

In addition, as alleged by the other party, even if the claimant gives birth to the principal of the case and receives money from the other party in return for the other party's proposal, the Civil Code recognizes the mother-child relationship at the time when a woman gives birth to the child, and the claimant has legal status as the mother since he gives birth to the principal of the case under the legal divorce with the other party. In addition, the claimant is a genetic and biological mother who gives his ovum to the principal of the case, and is naturally entitled to interview the principal of the case as a mother.

Therefore, the above argument of the other party is either vague or groundless.

In addition, the above facts alone do not reveal any apparent circumstance that the visitation rights of the claimant should be entirely excluded or more restrictive than the visitation rights recognized above. Considering the overall circumstances indicated in the examination of the case, such as the emotional condition, property relation, occupation, family relationship, living level, age of the principal of the case, current custody situation, determination of visitation rights, like the original adjudication, is reasonable for both the petitioner and the other party as well as the psychological stability and welfare of the principal of the case.

4. Conclusion

Therefore, the appeal by the other party is dismissed as it is without merit. It is so decided as per Disposition.

Judges Ahn Young-ro (Presiding Judge) Kim Min-young