Whether a court should conduct an ex officio investigation and examine evidence in cases where evidence of the party is insufficient in a claim for recognition (affirmative); and the method of proving parental relation by blood relation / The effect of a final and conclusive judgment where parental relation is recognized by blood relation (=the creation of parental relation); and whether a lawsuit to confirm the existence of parental relation by action against a final and conclusive judgment cannot be asserted that the parent-child relationship does not exist (negative)

A litigation on a claim for recognition of paternity is for the purpose of confirming the existence of de facto parent-child relationship between a father and a child and creating a legal parent-child relationship. If there is insufficient proof of the party concerned, the court shall conduct fact-finding and examine evidence ex officio. When proving the parent-child relationship, the blood type test and genetic tests between the father and the child have been used sufficiently. If the parent-child relationship is recognized by such proof, the parent-child relationship between the party in a final and conclusive judgment is established. Considering the purpose of a litigation on a claim for recognition, the procedure and method of examination, and legal effect of a litigation, as long as the parent-child relationship has been established between a father and the child by a final and conclusive judgment of a recognition suit, there is no dispute over the existence of the parent-child relationship between the parties by a litigation on confirmation of the existence of paternity

Articles 863 and 865 of the Civil Act, Article 202 of the Civil Procedure Act

Supreme Court Decision 2001Meu1537 Decided June 14, 2002 (Gong2002Ha, 1671) Supreme Court Decision 2012Meu5269 Decided December 26, 2013

Plaintiff (Law Firm Han, Attorneys Lee Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Family Court Decision 2014Reu30163 decided October 31, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

A litigation on the claim for recognition is for the purpose of confirming the existence of de facto parent-child relationship between a father and a child and creating a legal parent-child relationship. If there is insufficient proof of the party, the court shall conduct ex officio an investigation of facts and examine evidence, and where there is no sufficient evidence to prove the parent-child relationship, scientific methods such as blood type tests and genetic tests between the father and the child have been used sufficiently (see, e.g., Supreme Court Decisions 2001Meu1537, Jun. 14, 2002; 2012Meu5269, Dec. 26, 2013). Such proof is recognized and the parent-child relationship is established between the parties where the parent-child relationship is finally determined and conclusive. Considering the purpose, procedure, method, and legal effect of the litigation on the claim for recognition, as long as the parent-child relationship was established between the father and the child under the final judgment of the action for recognition, it cannot be said that there is no dispute between the parties with respect to the claim for confirmation of paternity.

According to the reasoning of the judgment of the court below, the denial of paternity between the plaintiff and the defendant was formed by a judicial acknowledgement, and seeking confirmation of the absence thereof does not constitute a lawsuit seeking confirmation of existence of paternity pursuant to Article 865 of the Civil Act.

The above determination by the court below is just in accordance with the legal principles as seen earlier, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the subject of the litigation.

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 Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)