[1] Whether a court shall conduct fact-finding and examine evidence ex officio where the party's proof is insufficient in a litigation seeking confirmation of denial of paternity (affirmative)

[2] The case reversing the judgment of the court below which did not fully examine the matters necessary to recognize the absence of paternity, in a lawsuit seeking confirmation of the existence of paternity between Eul and Byung as the natural father of the family relation register

[1] A litigation seeking confirmation of existence of paternity is a litigation seeking confirmation of the existence of paternity relationship between the father or mother and the child in the family relation register, and is related to the law of relatives as well as the public interest. Thus, Article 17 of the Family Litigation Act adopts ex officio principle as to the above litigation. Thus, the court shall conduct necessary fact-finding and examination of evidence ex officio when the party's proof is insufficient.

[2] In a lawsuit seeking confirmation that there is no parental relation between Gap and Byung in the family relation register as Eul and Byung's natural father, since four persons other than Eul and Byung in the family relation register are more than Eul, the case reversing the judgment of the court below which did not fully review the matters necessary to recognize the absence of parental relation, as they compared their genes with Gap's genes, and thus obtain meaningful data about the existence of parental relation between Gap and Byung. Thus, the relationship between Gap, Byung, and the above persons should be further examined and confirmed, and the judgment of the court below should be determined as to whether Gap and the above persons did not have parental relation relation, based on the results of genetic testing, etc. as stipulated in Articles 29 and 67 of the Family Litigation Act.

[1] Article 17 of the Family Litigation Act / [2] Articles 17, 29, and 67 of the Family Litigation Act

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

Plaintiff

Defendant

Jeju District Court Decision 2009Reu80 decided October 13, 2009

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

We examine the grounds of appeal.

A litigation seeking confirmation of existence of paternity is a litigation to confirm that the father or mother does not have a marital relationship between the father or mother and the child on the family relation register, and is related to the public interest as well as relatives’ law. Therefore, Article 17 of the Family Litigation Act provides ex officio attention to such litigation. As such, the court shall conduct necessary fact-finding and examination of evidence ex officio when the party’s proof is insufficient (see Supreme Court Decision 2001Meu1537, Jun. 14, 2002).

The Plaintiff filed the instant lawsuit by seeking confirmation of the existence of paternity between the Defendant and the deceased Nonparty 2, although the Defendant, as his father’s father, entered the deceased Nonparty 1 and the deceased Nonparty 2 in the family relations register. As to this, the lower court maintained that the first instance court’s statement on the purport that the Defendant is not the deceased Nonparty 2’s natural father, but the deceased Nonparty 3’s natural father is insufficient to deem that the Defendant is not the deceased Nonparty 2’s natural father, and that there is no other evidence to acknowledge this.

However, according to the records, the deceased non-party 1 and the deceased non-party 2 in the family relations register are identified as well as the defendant who was the deceased non-party 4 (1949), non-party 5 (1951), non-party 6 (1954), and non-party 7 (1957) in addition to the defendant who was the deceased non-party 1 and the deceased non-party 2 in the family relations register. Therefore, if the deceased non-party 2 is under the conditions such as the father-child relationship of the above person as stated in the above family relations register, it can obtain meaningful data on whether there was parental relation between the defendant and the deceased non-party 2 by comparing the genes of the above person and the defendant's genes.

If so, the court below should have tried and confirmed the relationship between the defendant and the deceased non-party 2 and the above persons, and should have determined whether there was no parental relation between the defendant and the deceased non-party 2 based on the results of the examination and examination conducted genetic testing with respect to the defendant and the above persons through an examination order under Articles 29 and 67 of the Family Litigation Act.

Nevertheless, the court below's dismissal of the plaintiff's claim of this case due to lack of evidence is erroneous by failing to exhaust all necessary deliberations as to whether the existence of parental relation is recognized or not. The purport of the appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Ji-hyung (Presiding Justice)