[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] The case holding that the report of birth of a natural father was retroactively effective as a report of adoption by the birth of an invalid natural father, even if the adoptive parent did not have the intention of adoption at the time of the report of birth of the natural father

[1] Articles 878 and 883 of the Civil Act / [2] Article 774 of the former Civil Act (amended by Act No. 4199 of January 13, 1990), Article 878 and Article 883 of the Civil Act, Article 4 of the Addenda (amended by Act No. 4199 of January 13, 1990)

[1] Supreme Court Decision 9Meu1633, 1640 delivered on June 9, 200 (Gong200Ha, 1654) Supreme Court Decision 2004Meu1484 Delivered on November 11, 2004 (Gong2004Ha, 2036) Supreme Court Decision 2007Da32795 Delivered on September 6, 2007

Plaintiff 1 and one other (Attorney Shin Shin-chul, Counsel for the plaintiff-appellant)

[Defendant-Appellee] ○○○ Co., Ltd. and one other (Attorney Shin Sung-sung, Counsel for defendant-appellee)

Seoul High Court Decision 2008Na48911 Decided December 16, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, even if the plaintiff 1 was born between the non-party 1 and the non-party 2 on September 3, 1952, and the non-party 2 was born on October 25, 1962, and the plaintiff 2 was born between the non-party 1 and the non-party 2 on October 28, 1962. The plaintiff 2 was born on the non-party 1 and the non-party 2 on April 30, 197, and it was difficult to view the plaintiff's birth report as the non-party 1 and the non-party 2 on the non-party 2's birth report as the non-party 1's child, and the plaintiff 2 was born on the non-party 2's birth report on the non-party 1's birth report on the non-party 2's birth report on the non-party 2's birth report on the non-party 1 and the non-party 2's birth report on the non-party 2's birth.

However, the above determination by the court below is difficult to accept for the following reasons.

At the time of the enforcement of the former Civil Act (amended by Act No. 4199, Jan. 13, 1990; hereinafter referred to as the “former Civil Act”; hereinafter referred to as the “former Civil Act”); a person, other than the spouse of the father, was in a legal parent-child relationship pursuant to Article 774 of the former Civil Act before the amendment, but such legal parent-child relationship was repealed and extinguished on January 1, 1991, which was the enforcement date pursuant to Article 4 of the Addenda to the amended Civil Act.

On the other hand, the report of the birth of a natural father as the intention of adoption and if the actual requirements of adoption are met, the adoption takes effect. In this case, the false report of the birth of a natural father is the function of the report of the adoption, which is a parent-child under the law, and the report of the birth of a natural father, even if it does not meet the actual requirements of adoption at the time of the report of the birth of the natural father, if the report of the birth of the natural father fails to meet the actual requirements of adoption thereafter, the report of the birth of the invalid natural father shall take effect retroactively as the report of adoption. In this case, there is an agreement of adoption to establish the actual requirements of adoption, and there is no legal representative's falling under the age of 15, but there is no ground for invalidation of adoption as prescribed in each subparagraph of Article 83 of the Civil Act, such as the existence or extension of the adoptive parent. In addition, even if the report of the birth of the natural father as the intention of adoption does not take effect as the report of adoption (see, e.g., Supreme Court Decision 2007Da797.

According to the reasoning of the judgment below and the records, Non-party 2 lived with the plaintiffs at the same time when the birth report of the plaintiffs was made, and took care of and brought up the plaintiff as her father's children. The non-party 1 continues to reside together with the plaintiffs after the death of September 5, 1981, and has been living as a family community. The plaintiff 1 was married in around 1986 and around 190, and the plaintiff 2 was able to look separately from the non-party 2. The non-party 2 did not have an implied consent to the adoption of the parent-child relationship at the time of marriage. Thus, it is difficult to view that the non-party 2 did not have an implied consent to the adoption of the parent-child relationship between the plaintiff 1 and the non-party 2 before and after the adoption of the parent-child relationship. Thus, it is difficult to view that the plaintiff 2 did not have an agreement with the plaintiff's family at the time of birth and to continue to live together with the plaintiff's family.

Nevertheless, the court below rejected all of the plaintiffs' claims of this case on the ground that it is difficult to deem that the non-party 2 donated or bequeathed his property to the defendants, in light of the fact that the non-party 2 donated or bequeathed his property to the defendants, it is difficult to view that the non-party 2 had an intention of adoption or an intention of adoption. In so doing, the court below erred by misapprehending the legal principles as to the substantive requirements

Therefore, the judgment of the court below is reversed, and 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.

Justices Park Si-hwan (Presiding Justice)