[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 in a case where Eul's father did not report the birth of the natural father of Eul as the intention of adoption, Eul's refusal of adoption is allowed only to a person who has expressed his/her intent of adoption by fraud or duress, and when three months have elapsed from the date when he/she knew of fraud or duress, the revocation of adoption shall not be claimed, and the validity of annulment is not retroactive to king, on the ground that it is distinct from the action to confirm the existence of paternity, and thus Gap cannot seek the confirmation of existence of paternity, in the sense of seeking the annulment of adoption

[1] The report of birth of a natural parent as the intent of the parties to establish a adoptive parent-child relationship, and if the actual requirements of adoption are met, the adoption takes effect even if the adoption were committed in the form thereof, and the adoptive parent-child relationship has the same contents as that of the adoptive parent-child relationship in law except for those that can be resolved by the dissolution of adoptive relation. Therefore, the report of birth of a natural parent-child relationship in this case has the function of the report of adoption to publicly announce the adoptive parent-child relationship under the law. However, an agreement of adoption is reached to determine that the actual requirements of adoption are met. However, there must be an agreement of adoption to determine that there is the actual requirements of adoption, a person under the age of 15 is the legal representative, and the adoption is not the existence or extension of the adoptive parent-child relationship, and there must be no grounds for invalidation of adoption under each subparagraph of Article 83 of the Civil Act, such as care, custody, etc., and thus, it shall not be effective if it fails to meet the above requirements.

[2] The case holding that in a case where Gap asserted that Byung did not report the birth of the natural father of Eul as the intention of adoption, the revocation of adoption is limited to a person who has expressed his/her intent of adoption by fraud or duress, and where three months have elapsed from the date of knowing fraud or duress, the revocation of adoption shall not be claimed (Article 897, Article 823 of the Civil Act) and the effect of the revocation of adoption is not retroactive (Article 897, Article 824 of the Civil Act), since it is distinct from the action to confirm the existence of paternity in relation to the reason and effect thereof, it cannot be claimed as a confirmation of the existence of paternity, which is sought by Gap, within the meaning of Article 884, subparagraph 3 of the Civil Act

[1] Articles 878 and 883 of the Civil Act / [2] Articles 823, 824, 878, 883, and 897 of the Civil Act

[1] Supreme Court en banc Decision 200Meu1493 Decided June 9, 200 (Gong2000Ha, 1654) decided May 24, 2001 (Gong2001Ha, 1392) Supreme Court Decision 2004Meu1484 Decided November 11, 2004 (Gong2004Ha, 2036)

Plaintiff (Attorney Woo-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Republic of Korea, Attorneys Park Jong-kin et al., Counsel for defendant-appellant)

Busan District Court Decision 2009Reu292 Decided October 23, 2009

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The report of birth of a natural parent as the intention of the parties to establish the adoptive parent-child relationship, and if the adoption satisfies all the substantial requirements, the adoption becomes effective even if the adoption was made, and the adoptive parent-child relationship should have the same contents as the adoptive parent-child relationship in law except for those that can be resolved by the dissolution of adoptive relation. Thus, the report of birth of a natural parent-child in this case has the function of the report of adoption publicly announcing the adoptive parent-child relationship (see Supreme Court en banc Decision 2000Meu1493, May 24, 2001). However, in order to determine that the actual requirements of adoption are met, there should be an agreement of adoption to establish the adoption. A person under 15 years of age shall be a legal representative's falling short of the legal representative, and the adoption shall not be the existence or extension of the adoptive parent-child relationship, and it shall be accompanied by the family status of the adoptive parent-child, such as care and custody, and shall not necessarily be effective as 140.160.

2. According to the reasoning of the judgment of the first instance as cited by the court below and the records, the deceased non-party 1 and the deceased non-party 2, after completing a marriage report on October 7, 1961, gave birth to the plaintiff who is his father among two married children. The deceased non-party 1 living with the non-party 3 from around 1972 to around January 29, 1973, which led to the defendant. However, the defendant was born between the deceased non-party 3 and the deceased non-party 1 and the deceased non-party 3 and had no contact with the deceased non-party 1 after the non-party 3 started living with the deceased non-party 1 and the deceased non-party 3 on October 16, 1985, and the deceased non-party 1 and the deceased non-party 3 and the deceased non-party 1 were living with the deceased non-party 1 and the deceased non-party 1 on October 9, 1985.

In light of the above facts in light of the legal principles as seen earlier, the defendant is not married between the non-party 3 and the deceased non-party 1 and the deceased non-party 2 at the time of the report of birth as the natural father, so the non-party 3, who is the biological mother, can independently consent to the adoption. It can be deemed that the non-party 3 consented to the adoption by understanding the report of birth as the natural father, and at the time of the report of birth as the father's father, the defendant living together at the deceased non-party 1's house and caused the personal life as the adoptive parent, such as custody, rearing, etc.

However, the court of first instance cited by the court below, although the deceased non-party 1 reported the birth of the defendant as his natural father and brought the defendant up for a certain period under the deceased non-party 2's understanding, it seems that the defendant was presumed to have known that he was the deceased non-party 1 and the deceased non-party 2, it is difficult to conclude that the deceased non-party 1 and the deceased non-party 2 had the intention to adopt the defendant, because it is difficult to view that the defendant had known that he was the deceased non-party 1 and the deceased non-party 2, who were born between the deceased non-party 3 and the deceased non-party 2. The decision of the court below is not acceptable for the following reasons.

First of all, according to the records, the plaintiff at the first instance court and the court below did not dispute the purport that the deceased non-party 1 did not report the birth as an adoption's intention, but did not argue that the defendant was not the deceased non-party 1's father. Rather, the defendant consistently argued that the deceased non-party 1 and the deceased non-party 1's mother of the deceased non-party 4 were well aware of the fact that he is not the father's father's father, and submitted evidence supporting this (Evidence No. 4-1 through 15, No. 11).

In addition, there are objective circumstances to deem that the deceased non-party 1 was aware of the fact that the deceased non-party 1 was not the deceased non-party 1's natural father, such as the birth report at a time when several years have elapsed since the deceased non-party 1 was living with the defendant. Thus, it is reasonable to view the deceased non-party 1 and the deceased non-party 2 as having reported the birth of the natural father, knowing that the deceased non-party 1 was not the deceased non-party

Therefore, the court of first instance cited by the court below, on the premise that the deceased non-party 1 and the deceased non-party 2 were unaware of the fact that the deceased non-party 1 were not the deceased non-party 1's natural father, making the above determination as above, lack of a substantial decision as to whether the deceased non-party 1 and the deceased non-party 2 intended to adopt the defendant. Meanwhile, if the other intention is not clear by the record, the report of the natural father's birth itself can be seen as a circumstance where the deceased non-party 1 had the intention to adopt the defendant. However, even after the deceased non-party 1's house, the deceased non-party 1 did not have any dispute over the birth of the natural father's natural father, and in fact, the deceased non-party 1 was only the deceased non-party 1 and the deceased non-party 2 had the intention to adopt the deceased non-party 1 and the deceased non-party 2 were living together with the deceased non-party 1's father and the deceased non-party 2.

In addition, the first instance court cited by the court below, even if there was an intention of adoption between the deceased non-party 1 and the deceased non-party 2, it was based on the premise that the defendant is the deceased non-party 1's natural father, and if the deceased non-party 1 and the deceased non-party 2 knew that the defendant is not the deceased non-party 1's natural father, they would not have reported the birth as the deceased non-party 1's natural father, which constitutes a ground for revocation of adoption under Article 884 subparagraph 3 of the Civil Code, and the plaintiff still has a benefit to seek confirmation of existence of paternity in the sense of seeking revocation of adoption.

However, as seen earlier, the Defendant’s mistake on the premise that he was not the deceased Nonparty 1’s natural father and the deceased Nonparty 2 was unaware of the fact that he was not the deceased Nonparty 1. Moreover, the revocation of adoption under Article 884 subparag. 3 of the Civil Act is qualified only for a person who has expressed his intention of adoption by fraud or duress. If three months have elapsed from the date he became aware of the fraud or the date he was relieved of the duress, the revocation of adoption may not be claimed (Article 897, Article 823 of the Civil Act). The effect of the revocation of adoption is not retroactive (Articles 897, 824 of the Civil Act), and it is distinguishable from the action of confirmation of existence of paternity in the grounds and validity thereof. Thus, in this case, the Plaintiff cannot seek the confirmation of existence of paternity in the sense of seeking the annulment of adoption.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the effect of adoption by the birth report of a natural father, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)