[1] Method of proving the parent-child relationship in a recognition suit

[2] The case reversing the judgment of the court below on the ground that it failed to exhaust all necessary deliberations concerning the recognition of paternity, such as solicitation of genetic assessment or an inspection order

[1] Article 863 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Article 863 of the Civil Act, Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 2001Meu1537 decided Jun. 14, 2002 (Gong2002Ha, 1671)

Plaintiff (Attorney Yang Chang-soo, Counsel for the plaintiff-appellant)

Prosecutor of Busan District Prosecutor

Intervenor joining the Defendant

Busan District Court Decision 2003Reu1392 delivered on January 21, 2005

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

1. According to the court below's decision, the court below found that the non-party 1 (the non-party 1's death on December 8, 2002) was divorced from the non-party 2 on December 7, 1952 and had an internal relationship with the non-party 3 (the non-party 3's death on April 24, 200) from around 1960. The non-party 1 raised the plaintiff from June 1965 and had the non-party 3 live together with the plaintiff from around 1968. The non-party 3 did not report the family register for the plaintiff's attending school on May 19, 1976 that the non-party 1 was born between the non-party 3 and the non-party 4 (the non-party 3's wife) and did not have any objective evidence to recognize the plaintiff's existence and non-party 1's non-party 1's birth as the plaintiff's mother did not appear before the plaintiff's death.

2. A recognition lawsuit is a lawsuit seeking to determine the existence of the parent-child relationship between a father and a child and to establish the parent-child relationship under the law, and is an important matter related to the public interest of the relative and the inheritance law. As such, an ex officio principle is adopted in this lawsuit. Thus, if the party’s proof is insufficient, an ex officio investigation and necessary evidence should be conducted. Meanwhile, in proving the existence of the principal fact of the parent-child relationship between the father and the child, whether there exists a relationship between the father and the child, whether there is a possibility of the father-child relationship between the father and the father and the child, whether there exists a speech or behavior leading the father to believe the father as his own child, whether there is a history of human science examination, blood type examination, or genetic testing, or whether there is an element of finding the parent-child relationship between the father and the child, and if there is an indirect method of proving the existence or non-existence of the parent-child relationship based on an empirical rule, it can only be said that there is no choice but to prove an indirect method of 2010.

According to the records, the court below sent the plaintiff's legal representative to the defendant's defendant's defendant's defendant and the defendant's defendant's defendant's defendant's defendant's defendant's defendant's 6, and the defendant's defendant's defendant's defendant's defendant's defendant's defendant's defense to cooperate in genetic assessment. However, the court of first instance as well as the court of first instance does not seem to be a trace that recommended the plaintiff's or the defendant's defendant's defendant's defendant's assertion or ordered genetic assessment, etc., and the testimony of the non-party 5's defendant's defendant's defendant's defendant's defendant's defense

Therefore, the court below should have tried to examine and confirm the birth and growth process of the plaintiff, the degree of exchange between the plaintiff and the non-party 1 before death, and the relationship between the plaintiff and the non-party 1. On the other hand, the court below should have determined whether the relation between the plaintiff and the non-party 1 can be recognized based on the results of the examination and examination, even if the court below recommended genetic appraisal or ordered the autopsy under the Family Litigation Act, but did not comply with such order.

Nevertheless, the court below recognized the same facts as the reasoning of the judgment and accepted the plaintiff's claim for recognition as the father of the non-party 1, which affected the conclusion of the judgment by mismisunderstanding facts in violation of the rules of evidence or failing to exhaust all necessary deliberations as to the recognition of paternity. Therefore, the ground of appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)