[1] The requirements to bring effect into force as an adoption report where a party has reported the birth of a natural father as an adoption intention

[2] In a case where the birth report of a natural father did not take effect as an adoption report because it did not meet the actual requirements at the time of the report of birth of the natural father, but thereafter satisfies the substantial requirements of adoption, whether the report of birth of an invalid natural father has the effect as an adoption report retroactively (affirmative)

[1] The report of birth of a natural father as the intention of adoption shall be made by the parties, and if the actual requirements of adoption are met, the adoption shall take effect even if it is found to be erroneous in the form of the adoption. In this case, the false report of birth of the natural father shall function as the report of adoption publicly notifying the adoptive parent-child relationship, which is the parent-child relationship under the law. In this case, the adoption agreement shall be reached to determine that the actual requirements of adoption are met, and the child under the age of 15 shall have the legal representative's abortion, and the adoption shall not be deemed to have the existence or extension of the adoptive parent-child relationship, and the adoption shall not necessarily have the grounds for invalidation of adoption under each subparagraph of Article 83 of the Civil Act, such as custody and custody, and shall be accompanied by the personal life record as the adoptive parent-child relationship. The adoption report shall not take effect,

[2] Even if a natural father's report of adoption does not take effect because it does not meet the actual requirements of adoption at the time of the report of birth, if the adoption does not take effect thereafter, the report of birth of an invalid natural father shall take effect retroactively as the report of adoption. However, although the main sentence of Article 139 of the Civil Act provides that a null and void legal act does not take effect even if ratification is ratified, it is invalid to recognize retroactive effect by ratification without applying the provisions regarding the act of adoption. If a legal act is null and void and the legal relationship has been actually formed, and both parties have continued to take effect without objection, denying the validity of the existing status relationship formed on the ground that such report is unlawful is contrary to the intention of the parties, and it is likely to infringe on the interests of a third party who believe the external status relationship and the statement in the family register, and therefore it is reasonable to protect the essential elements of the status relationship, such as the formation of the status relationship by recognizing the effect retroactively by ratification. Therefore, if the status relationship corresponding to the act of null and void reporting is not formed, it cannot be recognized as invalid merely for ratification of the act of invalidation.

[1] Article 878 of the Civil Act / [2] Articles 139, 878, and 883 of the Civil Act

[1] Supreme Court en banc Decision 77Da492 delivered on July 26, 197 (Gong1977, 10219) Supreme Court Decision 85Meu86 delivered on February 23, 198 (Gong198, 593) Supreme Court Decision 92Da51969 delivered on February 23, 1993 (Gong193Sang, 107) / [2] Supreme Court Decision 91Meu30 delivered on December 27, 1991 (Gong192, 782)

Plaintiff (Attorney Gangnam- Line et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jae-soo, Counsel for defendant-appellant)

Daejeon District Court Decision 99Reu19, 133 delivered on July 23, 199

The judgment below is reversed. The case is remanded to Daejeon District Court Panel Division.

The grounds of appeal as to the principal lawsuit and counterclaim shall be examined together.

1. According to the reasoning of the judgment of the court below, the non-party 1 was born on September 6, 1993 by Nonparty 1 living together with the non-party 2 in Japan and gave birth to the plaintiff (the counter-party 1; hereinafter referred to as "the plaintiff"), and the plaintiff's name was "the non-party 4, who was the birth of the plaintiff and the non-party 2's birth," upon the recommendation of the non-party 3, the plaintiff's birth report was made on December 1, 1993 and the non-party 9's birth report was entered on the non-party 1 and the non-party 9's birth report was entered on the non-party 2's family register as the non-party 9's birth report, and the defendant's birth report was made on the non-party 1 and the non-party 2's birth report was made on the non-party 9's family register as the non-party 1's birth report was made on May 1999.

2. The report of birth of the natural father as the intention of adoption shall be made by the parties, and if the actual requirements of adoption are met, the adoption shall take effect even if there are errors in the form of the adoption. In this case, the false report of birth of the natural father shall function as the report of adoption to publish the adoption of the parent-child relationship, which is a legal parent-child relationship (see, e.g., Supreme Court en banc Decision 77Da492, Jul. 26, 197; 85Meu86, Feb. 23, 198; 92Da51969, Feb. 23, 1993; 15, a person under the age of 15 shall be the legal representative's abortion, and the adoption shall not be the surviving or the extension of the adoptive parent, and the adoption shall not be effective if the report of adoption is not accompanied by the report of birth of the natural father's status as an adoptive parent.

However, according to the facts established by the court below, the plaintiff is a child born out of wedlock and at the time when the defendant reports the birth of the plaintiff as the natural father, the plaintiff's natural father was the legal representative who is the person in parental authority. However, the non-party 1, the legal representative of the plaintiff, merely because the non-party 1 entrusted the plaintiff's fostering to the non-party 3 and the non-party 3 consented to the plaintiff's report of birth against the defendant, cannot be deemed to have died of adoption, and there is no other evidence to prove that the non-party 1 died of the plaintiff's adoption at the time of examining the evidence employed by the court below. Thus, even if the defendant was the legal representative of the plaintiff, it cannot be said that the adoption report was

However, even if the birth report does not take effect as an adoption report because it does not meet the substantive requirements at the time of the report of the birth, if the report of the natural father's birth does not take effect thereafter, the report of the natural father's birth shall take effect retroactively as an adoption report. However, even though the main sentence of Article 139 of the Civil Act provides that a null and void legal act does not take effect even if ratification is ratified, it is invalid to recognize retroactive effect by ratification without applying the provisions regarding the adoption act. If, after the act of an invalid status, the status relationship is substantially formed and both parties have continued to take effect without objection, denying the effect of the existing status relationship formed on the ground that such report is unlawful is contrary to the intention of the parties, and it is likely to infringe on the interests of a third party that believe the external status relationship and the statement in the family register, and therefore it is reasonable to protect the essential elements of the status relationship formed retroactively by ratification, and thus, if the status relationship corresponding to the act of a null and void report is not formed, it cannot be recognized as null and void.

However, according to the facts acknowledged by the court below, the non-party 1 may be deemed to have ratified the adoption by preparing and delivering a written waiver of parental authority and custody rights of the plaintiff to the defendant during the course of the lawsuit in this case at around March 1999. However, according to the records, the defendant, on January 12, 1999, is married with the plaintiff's father and the non-party 2, and the non-party 2 was deceased on January 18 of the same year after the non-party 2 died on January 18 of the same year, and thus, the plaintiff's father and the non-party 3 was raising the plaintiff (record 20, 85, 90). Accordingly, even if the non-party 1 confirmed the adoption as seen above, it cannot be deemed that the adoption was null and void as a family relation between the defendant and the plaintiff as an adoptive parent at the time of adoption.

Nevertheless, the court below determined that the adoption by the defendant was effective by the birth report of the natural father of the plaintiff by deeming that the defendant satisfied all the substantial requirements of adoption, such as the plaintiff's parent's de facto abortion, solely based on the facts acknowledged in its reasoning, cannot be said to have committed an unlawful act that affected the conclusion of the judgment by misunderstanding the facts contrary to the rules of evidence or misunderstanding the legal principles on the fall of adoption. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Lee Yong-woo (Presiding Justice)