[1] Whether the date of birth and date of death in the family relation register can be seen as the subject of correction of the family relation register under Article 104 of the Act on the Registration, etc. of Family Relationship (affirmative in principle)

[2] In a case where Gap's mother Eul, a legal representative of Eul, filed a correction of the family relation register on July 31, 2010 after the date of birth of Gap was reported as of July 31, 2010, and later Gap filed a correction of the family relation register on December 18, 2007, the case holding that the order of the court below which rejected Gap's correction of the family relation register on the ground that Gap's legal representative is presumed to be Byung's child under Article 844 of the Civil Act was erroneous in the misapprehension of legal principle

[1] Article 104 of the Act on the Registration, etc. of Family Relationship (hereinafter “the Act”) provides that when the recording of a family relation register is not legally permitted, or there is an error or omission in the recording, interested persons may apply for the correction of the register with the permission of the family court having jurisdiction over the original domicile of the person concerned. Considering the purport that the Act allows correction of the recording of a family relation register according to such a simple procedure, where the recording of a family relation register intended to be corrected has a significant impact on the status relationship, and the method of direct litigation is stipulated in the Family Litigation Act, etc. as to the existence or absence of the recording of a family relation register, the recording of a family relation register can be corrected only by the final judgment, etc. of the case pursuant to Article 107 of the Act. However, in cases where there is no direct method of litigation in relation to the recording of a family relation register, it is reasonable to view that the person under the Family Litigation Act, etc. does not separately provide for the method of temporary or temporary litigation.

[2] In a case where Gap's mother who is a legal representative of Gap filed a correction of the family relation register after the date of birth on July 31, 2010 after the spouse's joint divorce on September 28, 2009, Gap filed a correction of the family relation register with Gap's actual date of birth on December 18, 2007, the case held that the court below's rejection of Gap's application for correction of the family relation register under Article 104 of the Act on the Registration, etc. of Family Relationship Relationship (hereinafter "the Act"), since the correction of the date of birth in the family relation register should be subject to correction under Article 104 of the Act on the Registration, etc. of Family Relationship ("the Act"), and the birth in the provision on the presumption of paternity under Article 844 of the Civil Act should be based not on "the date of birth in the family relation register" but on "the date of actual birth in the family relation register", and since the date of birth on the family relation register cannot be viewed to seriously affect the family relation register.

[1] Articles 104 and 107 of the Act on the Registration, etc. of Family Relationship / [2] Article 844 of the Civil Act, Articles 104 and 107 of the Act on the Registration, etc. of Family Relationship

[Judgment of the court below]

Gwangju District Court Order 2011BB28 dated August 16, 2011

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

The grounds of reappeal are examined.

1. Article 104 of the Act on the Registration, etc. of Family Relationship (hereinafter “the Act”) provides that where the recording of a family relation register is not legally permitted, or where there is an error or omission in the recording, interested persons may apply for the correction of the register with the permission of the family court having jurisdiction over the original domicile of the person concerned. Considering that the Act provides that the recording of a family relation register to be corrected may be corrected in accordance with such simplified procedure, where the recording of a family relation register to be corrected has a significant impact on the status relationship, and the method of direct litigation is stipulated in the Family Litigation Act, etc. as to the existence or absence of the recording of a family relation register, the recording of a family relation register can be corrected only by the final judgment, etc. of the case pursuant to Article 107 of the Act. However, in cases where there is no direct method of litigation in relation to the recording of a family relation register, the Family Litigation Act, etc. shall be corrected pursuant to Article 104 of the Act, and there is no special reason to view that the recording of a family relation register is an object of temporary or death.

2. According to the reasoning of the order of the court below, the date of birth of the re-appellant was actually made on December 18, 2007, and the mother, who is the legal representative of the re-appellant, was not reported on August 27, 2010, and the date of birth of the re-appellant was reported on July 31, 2010 in order to avoid legal sanctions, and the date of birth of the re-appellant on the family relations register was mistakenly stated on July 31, 2010, so the court below reversed the re-appellant's claim that the re-appellant sought correction of the date of birth of the re-appellant was made on December 18, 2007, but the legal representative of the re-appellant was recognized as having been reported on March 21, 1984 and reported on divorce on September 28, 2009, and thus, the re-appellant's application for correction of the date of birth of the re-appellant should have a significant effect on the re-appellant's relative or person under the inheritance law.

3. However, in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below for the following reasons.

First of all, considering the birth certificate, medical record book, certificate of entrance and discharge, photographs after birth, current photographs, and personal record certificates for the re-appellant submitted as the supporting material of this case, the actual date of birth of the re-appellant seems to be December 18, 2007, unlike the record of the family relation register.

In addition, the correction of the date of birth of the family relations register against the re-appellant shall be subject to the correction of the family relations register under Article 104 of the Act, unless there are special circumstances.

Meanwhile, Article 844 of the Civil Act provides that a wife who was born during the marriage shall be presumed to be the father, and the person who was born within 20 days after the date of the marriage formation or within 30 days from the date of the termination of the marriage relationship shall be presumed to have been born during the marriage. The report of birth under the above provision on the presumption of paternity is merely a so-called report which does not have a creation effect by the said report, but rather a so-called report, so-called “the date of birth reported to the family relation registry” should be deemed to be based not on “the date of birth reported to the family relation registry,” but on “the time of actual birth.” Therefore, the correction of the family relation register pursuant to Article 104 of the Act shall not be deemed to have a significant impact on the family relation relationship

Nevertheless, the lower court rejected the application for correction of the date of birth of the re-appellant on the grounds as stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the subject of correction of the family relations register pursuant to Article 104 of the Act, thereby adversely affecting the conclusion of the judgment. The

4. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)