The reversal of the presumption power of family register

The presumption that the statement in a family register is a legitimate and consistent with the truth is merely a mere fact, and even if the statement is corrected or final judgment, it can be reversed with evidence contrary to the statement.

Supreme Court Decision 67Da499 Decided April 30, 1968

Plaintiff’s Attorney Allocation

Defendant (Attorney Cho Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 77Na2271 delivered on December 22, 1977

The appeal shall be dismissed. The costs of appeal shall be borne by the defendant.

(1) The defendant's attorney's grounds of appeal are examined.

The court below acknowledged the fact that the plaintiff was born out of wedlock between the non-party deceased and the non-party 2 (the plaintiff's mother) on the family register on March 30, 1963 that the birth report was made between the non-party deceased and the non-party 2 (the plaintiff's mother) on the family register. The non-party deceased on December 3, 1974 and the plaintiff became a right holder of real estate in the original judgment on December 21, 1974, and the plaintiff was a minor on December 21, 1974. The non-party 2 and the non-party 1, who was a person with parental authority, transferred the plaintiff's share in the real estate to the defendant 5,00,000 won and the plaintiff's share in the real estate, and the non-party 2 did not consent to the family council in disposing of the plaintiff's share in this case as a person with parental authority, and then revoked the plaintiff's share in this case's real estate under the plaintiff's title without the consent of the family council.

(A) Determination on the first ground for appeal

The provision of the Civil Act on the legal act of a minor who is not a natural father applies formally to the plaintiff, regardless of the actual ability to act. Thus, at the time of disposing of the shares in this case, the plaintiff had the ability to act like theory of action, and was engaged in the legal act like his mother. Even though the registration of transfer of ownership in this case was not made by a forged document, so long as the disposal disposition is revoked by the plaintiff who is a legitimate cancellation authority, the registration of transfer of ownership in this case under the name of the defendant cannot be deemed to correspond to the substantive legal relationship.

In this regard, the disposition rejecting the defendant's defense is just, and there is no error of incomplete deliberation in the original judgment, and the decision of the party member pointing out the arguments is not appropriate in this case. The arguments are without merit.

(B) Determination on the second ground

The entry in a family register is legally legitimate and presumed to be consistent with the truth. It is too excessive that the entry does not create a personal relationship by only the entry. Thus, the presumption can be reversed with evidence contrary to the statement without following the correction of the entry or the final judgment of confirmation of existence outside the personal relationship by the entry (see Supreme Court Decision 67Da499 delivered on April 30, 1968).

In the same purport, the court below rejected the defendant's assertion that the non-party 2 may dispose of the plaintiff's property without the consent of the family council before recognizing a family register's status different from the entry in the family register in accordance with evidence, and the non-party 2 can dispose of the plaintiff's property without the consent of the family council. The court below's examination of the process of documentary evidence conducted to recognize the above facts is legitimate, and the above judgment of the court below

(2) Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Young-chul (Presiding Justice)