Whether the proviso of Article 860 of the Civil Act on the limitation of retroactive effect of recognition in a mother-and-child relationship, which does not require affiliation, applies or analogically applies (negative), and whether a person, based on Article 1014 of the Civil Act, cannot deny the validity of division or disposition on inherited property performed by another co-inheritors of the mother, based on Article 1014 of the Civil Act (negative)

Article 860 of the Civil Code provides that "a recognition shall take effect retroactively from the time of the birth of the child," while the proviso restricts the retroactive effect of recognition by stating that "the right acquired by a third person shall not be prejudiced," and Article 1014 of the Civil Code provides that "if a person who becomes a co-inheritors by acknowledgement after the commencement of inheritance or by the confirmation of the judgment, files a claim for the division of inherited property, the other co-inheritors shall have the right to claim the payment of the equivalent value to the inherited portion if the co-inheritors already divided or disposed of the property."

However, the legal parent-child relationship between a child born out of wedlock and a biological mother is naturally created due to the birth of the child, not waiting for the biological recognition or the birth report of the child, and only there is a written judgment on the record of the family relation register or the judgment on the existence of paternity by the court. Therefore, the proviso of Article 860 of the Civil Act on the limitation of the retroactive effect of recognition does not apply or apply mutatis mutandis to a mother-child relationship which does not require affiliation, and it cannot be deemed that the effect of division or disposition on inherited property performed by another co-inheritors of the mother on the ground of Article 1014 of the Civil Act, which provides for the right to claim payment of the value of a person who becomes co-inheritors by recognition after the commencement of inheritance or by the confirmation of the judgment on the existence of paternity, cannot be deemed to be denied. The same applies even if other co-inheritors have already

Articles 860 and 1014 of the Civil Act

Supreme Court Decision 67Da1791 Decided October 4, 1967 (No. 15-3, 184) Supreme Court Decision 92Nu3199 Decided July 10, 1992 (Gong192, 2434)

Plaintiff (Appointed Party)

Defendant 1 and one other

Changwon District Court Decision 2017Na2155 decided December 7, 2017

The part of the judgment of the court below against the plaintiff (appointed party) and the designated party shall be reversed, and that part of the case shall be remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. Article 860 of the Civil Act provides that “A recognition shall take effect retroactively from the time of birth of the child,” while the proviso restricts the retroactive effect of recognition by stating that “However, the right acquired by a third party shall not be prejudiced.” Article 1014 of the Civil Act provides that “If a person who becomes a co-inheritors by acknowledgement after the commencement of inheritance or by the confirmation of a judgment after the commencement of inheritance files a claim for division of inherited property, other co-inheritors shall have the right to claim payment of the value equivalent to the inherited portion if the co-inheritors already divided or disposed of the inherited property.”

However, the parent-child relationship naturally takes place between a child born out of wedlock and a child born without waiting for the birth recognition or the birth report (see Supreme Court Decision 67Da1791, Oct. 4, 1967). Only when there is a judgment on entry in the family relations register or the court’s confirmation of existence of paternity, it cannot be recognized (see Supreme Court Decision 92Nu3199, Jul. 10, 1992). Therefore, the proviso of Article 860 of the Civil Act on the limitation of the retroactive effect of recognition does not apply or apply to a mother-child relationship which does not require affiliation, and it cannot be deemed that the division or disposal of inherited property performed by another co-inheritors based on Article 1014 of the Civil Act, which provides for the right to claim payment of the value of the person who becomes a co-inheritors after the commencement of inheritance or by the confirmation of judgment after the division or disposal of inherited property, even if other co-inheritors clearly became final and conclusive due to the confirmation of the parent-child relationship.

2. A. According to the reasoning of the lower judgment, the lower court determined as follows. The inherited property divided or disposed of by co-inheritors prior to affiliation belongs to the co-inheritors or the transferee of the divided inherited property in accordance with the limitation on the retroactive effect of recognition as provided for in the proviso of Article 860 of the Civil Act, and such legal doctrine also applies to the case where a person who is confirmed as an inheritor by the confirmation of existence of paternity after the commencement of inheritance occurs. The final judgment that there was parental relation between the Plaintiff (Appointed Party) and the designated parties (hereinafter “Plaintiff, etc.”) and Nonparty 1 was final and conclusive is after Defendant 1 disposed of the real estate listed in the attached Table 1 list (hereinafter “instant real estate”) as indicated in the lower judgment against Defendant 2 and completed the registration of ownership transfer. Ultimately, the Plaintiff, etc. falls under Article 1014 of the Civil Act as “a person who became a co-inheritors by the confirmation of the judgment after the commencement of inheritance,” and thus, can only exercise a claim for payment of the purchase price against Defendant 1.

B. However, the above determination by the court below is difficult to accept in the following respect.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) Nonparty 1 married with Nonparty 2 and divorced Defendant 1 after having given birth, while maintaining a de facto marital relationship with Nonparty 3, given birth to the Plaintiff, etc.

B) Nonparty 1 owned the instant real estate and died on January 27, 2015. Defendant 1 completed the registration of ownership transfer based on inheritance on June 8, 2015, and sold the instant real estate to Defendant 2 on June 25, 2015, and completed the registration of ownership transfer around that time.

C) On February 12, 2016, the Plaintiff et al. filed a lawsuit seeking confirmation of existence of paternity between Nonparty 1 and the Plaintiff et al., and the quoted judgment became final and conclusive on July 1, 2016.

2) Examining the above facts in light of the legal principles as seen earlier, it is not possible to recognize that the birth between the Plaintiff, etc. and Nonparty 1, who is the biological mother, has a legal parent-child relationship as a matter of course due to the birth of the Plaintiff, etc., and there

Therefore, the proviso of Article 860 of the Civil Act does not apply or analogically apply to the Plaintiff, etc. and the Plaintiff, etc. cannot be deemed as denying the validity of the disposition on the instant real estate by Defendant 1 based on Article 1014 of the Civil Act. This is also true even if Defendant 1, etc., after the instant real estate was already disposed of, became final and conclusive in a judgment confirming the existence of parental relation between the Plaintiff, etc. and Nonparty 1, thereby clearly stating

C. Nevertheless, the lower court rejected the Plaintiff’s claim seeking the cancellation of ownership transfer registration in the name of the Defendants on the instant real estate on the grounds as seen earlier, which erred by misapprehending the legal doctrine on the establishment of mother and child relationship and the scope of application of the proviso of Articles 860 and 1014 of the Civil Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, without examining the remaining grounds of appeal, the part against the plaintiff et al. among the judgment below is reversed, and that part of 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.

[Attachment] List of Appointeds: Omitted

Justices Park Jung-hwa (Presiding Justice)