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(영문) 대법원 2018. 11. 6. 자 2018스32 결정
[등록부정정][공2019상,30]
Main Issues

[1] Whether the family relation register may be prepared only with the report of birth of the father for a child born out of wedlock between the father and the mother who is a national of the Republic of Korea and the foreign mother (negative), and the procedure for preparing the family relation register

[2] In a case where a person liable for a true report of birth exists for a child whose family relation register has been closed, whether a new family relation register should be prepared after re-report of birth (affirmative), and whether a person liable for a report of birth and his/her child are subject to correction of the register under Article 107 of the Family Relation Register Act solely on the ground that a final and conclusive judgment on confirmation of paternity exists

Summary of Judgment

[1] The purpose of the Act on the Registration, etc. of Family Relationship (hereinafter “Family Relationship Act”) is to prescribe matters concerning the registration of establishment and changes in the family relationship of “nationals,” and matters concerning the certification thereof (Article 1). The establishment, correction, etc. of a family relation register under the aforementioned Act shall be subject to Korean nationals.

Article 2(1)1 of the Nationality Act provides that a person whose father or mother is a national of the Republic of Korea at the time of birth shall be deemed to have acquired the nationality of the Republic of Korea at the same time of birth. In addition, Article 3(1) and (2) of the Nationality Act provides that a person who is not a national of the Republic of Korea (hereinafter referred to as "foreigner") is a minor under the Civil Act of the Republic of Korea, and if the father or mother was a national of the Republic of Korea at the time of birth, he/she shall be deemed to have acquired the nationality of the Republic of

In this context, in order to acquire the nationality of the Republic of Korea at the same time on the ground that a father and a child are a national of the Republic of Korea pursuant to Article 2(1)1 of the Nationality Act, legal parent-child relationship between a father and a child born out of wedlock ought to be recognized. However, without recognition, legal parent-child relationship does not occur between a father and a child born out of wedlock. Therefore, with respect to a child born out of wedlock between a father and a child who is a national of the Republic of Korea and a foreign mother, the family relation register cannot be prepared only by the birth report of the father, and where the child is a minor, the family relation register may be prepared when the child acquired the nationality of the Republic of Korea after reporting to the Minister of Justice pursuant to Article 3 of the Nationality Act, and such notification is made (see Article 2 of the Enforcement Decree of the Nationality Act, Article 93 of the Family Relationship Act, and Article 429 of the Regulations).

[2] Where a judgment of confirmation of existence of paternity becomes final and conclusive between a child whose birth record is recorded and his/her father or mother, the family register office shall close the family register after cancelling the specific registration of the father or mother whose father or mother has no paternity relation relation relation register (see Article 17(2) of the Regulations on Registration, etc. of Family Relationship, Article 1(2), Article 4(1) and (2), and Article 5 of the Regulations on Procedures for Correction of Family Relationship Registers (Rules No. 300 of the Regulations on Family Relationship).

Furthermore, in cases where a person liable to file a true report on the family relation register exists with a closed child, a new family relation register shall be prepared by re-reporting the report of birth, and the fact that there exists a final and conclusive judgment on confirmation of the existence of paternity between the person liable to file a report of birth and his/her child, which alone does not constitute a correction of the register under Article 107 of the Act on the Registration, etc. of Family Relationship (see Article 2(1) of the Regulations on Procedures for Correction of Family Relation Registers (Rules No.

[Reference Provisions]

[1] Articles 1 and 93 of the Act on the Registration, etc. of Family Relationship; Articles 2(1)1 and 3(1) and (2) of the Nationality Act; Article 2 of the Enforcement Decree of the Nationality Act; methods of report of birth for children born between Korean nationals and foreigners (Article 429 of the Regulations on the Registration, etc. of Family Relationship); Article 855 of the Civil Act / [2] Articles 1 and 107 of the Act on the Registration, etc. of Family Relationship; Article 17(2) of the Regulations on the Registration, etc. of Family Relationship; Articles 1(2), 2(1), 4(1), (2), and 5 of the Regulations on the Procedures for Correction of Family Relationship (Rules on the Registration, etc. of Family Relationship); Article 865 of the Civil Act

Reference Cases

[1] Supreme Court Decision 84Meu73 delivered on September 25, 1984 (Gong1984, 1725) Supreme Court Decision 96Meu738 delivered on February 14, 1997 (Gong1997Sang, 772)

Applicant and Re-Appellant

Re-appellant

Principal of the case

Principal of the case

The order of the court below

Chuncheon District Court Order 2017BB35 dated April 17, 2018

Text

The reappeal is dismissed.

Reasons

The grounds of reappeal are examined.

1. A. The purpose of the Act on the Registration, etc. of Family Relationship (hereinafter “Family Relationship Registration Act”) is to prescribe matters concerning the registration of establishment and change in the family relationship of “nationals” and matters concerning the certification thereof (Article 1). The establishment, correction, etc. of a family relationship register under the aforementioned Act is for the Korean citizens.

B. Article 2(1)1 of the Nationality Act provides that a person whose father or mother is a national of the Republic of Korea at the time of birth shall be deemed to have acquired the nationality of the Republic of Korea at the same time of birth. Article 3(1) and (2) of the Nationality Act provides that a person who is not a national of the Republic of Korea (hereinafter “foreigner”) is a minor under the Civil Act of the Republic of Korea and is recognized by his/her father or mother who is a national of the Republic of Korea at the time of birth, and the father or mother was a national of the Republic of Korea at the time of birth

In this context, in order to acquire the nationality of the Republic of Korea at the same time on the ground that a father and a child are a national of the Republic of Korea pursuant to Article 2(1)1 of the Nationality Act, legal parent-child relationship between a father and a child ought to be recognized. However, legal parent-child relationship does not occur without recognition (see, e.g., Supreme Court Decisions 84Meu73, Sept. 25, 1984; 96Meu738, Feb. 14, 1997). Therefore, with respect to a child born out of wedlock between a father and a child who is a national of the Republic of Korea and a foreign mother, the family relation register may not be prepared only by the report of birth of the father. If the child is a minor of the Republic of Korea, the family relation register may be prepared when the child was reported to the Minister of Justice pursuant to Article 3 of the Nationality Act, and then such notification is made (see, e.g., Article 2 of the Enforcement Decree of the Nationality Act; Article 93 of the Family Relation Act).

C. Meanwhile, where a judgment of confirmation of existence of paternity becomes final and conclusive between a child whose birth record is recorded and his/her father or mother, the family register office shall close the family register after cancelling the specific registration of the father or mother whose father or mother has no paternity relation relation register (see Article 17(2) of the Regulations on Registration, etc. of Family Relationship, Articles 1(2), 4(1) and (2), and 5 of the Regulations on Procedures for Correction of Family Relationship Registers (Article 300 of the Regulations on Procedures for Correction of Family Relationship Registers).

Furthermore, in cases where a person liable to file a true report on the family relation register exists with a closed child, a report of birth shall be re-written and a new family relation register shall be prepared. The fact that there exists a final and conclusive judgment on confirmation of the existence of paternity between the person liable to file a report of birth and his/her child and the child shall not be subject to correction of the register under Article 107 of the Family Relation Register Act (see Article 2(1) of the Regulations on Procedures for Correction of Family Relation Registers (Rules 300

2. According to the reasoning of the order of the court below and the records of this case, ① the re-appellant and the non-Appellant and the non-Appellant and the non-Appellant and the non-Appellant and the Chinese nationality of the Republic of Korea were born on November 27, 2007. ② On December 6, 2007 upon the request of the Re-Appellant and the non-Appellant 2, the principal of this case was reported as if both the non-Appellant and the non-Appellant were born between the non-Appellant and the non-applicant 3 and the non-applicant 4, and the family relation register of this case was prepared on July 19, 2014. ③ The Re-Appellant and the non-Appellant were divorced with the non-Appellant 2 and the non-Appellant on August 12, 2014. ④ Upon the request of the non-Appellant and the non-Appellant 2, the Suwon District Court confirmed that the non-Appellant and the non-Appellant 214, respectively, did not exist between the two-appellant and the non-appellant 2514, respectively.201.

3. Examining the above facts in light of the legal principles as seen earlier, a new family relation register shall be prepared with respect to the principal of the case following the following procedures:

A. The family relation register of the principal of the case shall be closed in a case where the parental relation register becomes final and conclusive between the principal of the case and his parents.

B. Since then, a new family relation register should be prepared by the re-appellant and the non-applicant and the non-applicant and the non-applicant and the family relation register should be prepared. Since the principal of the case is a child born out of a minor marriage who was born between the re-appellant with the nationality of the Republic of Korea and the non-applicant and the non-applicant and the non-party 2 with Chinese nationality, he/she must acquire the nationality of the Republic of Korea in accordance with Article 3 of the Nationality Act prior to the preparation of the family relation register. This is because the principal of the case acquires the nationality of the Republic of Korea

C. The principal of this case may acquire the nationality of the Republic of Korea by reporting it to the Minister of Justice after being recognized by the re-appellant pursuant to Article 3 of the Nationality Act. Therefore, pursuant to Article 55 of the Family Relationship Registration Act, the re-appellant shall file a recognition report with the head of the competent Si/Eup/Myeon (if he/she intends to make a recognition report, the non-applicant 2 must first file a report of birth pursuant to Chinese law) or file a report with the Minister of Justice for the acquisition of nationality after the natural father's birth who has the effect of recognition with the principal of this case pursuant to Article 57(1) of the Family Relationship Registration Act. If the Minister of Justice notifies the head of Si/Eup/Myeon having jurisdiction over the acquisition of nationality pursuant to Article 93 of the Family Relationship Registration Act, a new family relation register shall be

4. Thus, the court below's dismissal of the re-appellant's application seeking correction of the parent's name and gender of the principal of the case stated in the family relations register as to the principal of the case is just, and there is no violation of the Constitution, law, order or rule that affected the judgment, as otherwise alleged in

5. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)

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