2019dden204681 Confirmation of the existence of paternity

A

1. B

2. Sick:

December 20, 2019

February 28, 2020

1. Of the instant lawsuits, the part on the claim for confirmation of paternity between the Defendant B and the Deceased shall be dismissed.

2. At the same time, the Defendant confirms that there is no parental relation between the Deceased.

3. Of the litigation costs, the part incurred between the plaintiff and the defendant Eul shall be borne by the plaintiff, the part incurred between the plaintiff and the defendant Byung, respectively.

The claim No. 2 and the defendant confirm that there is no parental relation between the deceased and the deceased.

1. Basic facts

A. The deceased and the deceased were legally married on February 23, 1968, and the Defendants were recorded in the family relations register as their children. The Plaintiff is the birth of the deceased.

B. The Defendant is a dual-class system in which the deceased’s her her son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s son’s son’s son’s son’s son’s son

D. On September 7, 2018, the Deceased was diagnosed by the ○ University Hospital on dementia (alzines) but on January 7, 2019, the △ Hospital was diagnosed as having no diagnosis of brain CT and identification function test, and it was diagnosed as having disability of Do’s recognition.

E. In a genetic test conducted around January 17, 2019 between the Deceased and the Defendants, there was a result that it is impossible to determine whether the parent-child relationship is the parent-child relationship due to the difference between the Deceased and the Defendant B, and between the Deceased and the Defendant C, with the exception of a sexual chromosome body.

[Ground of recognition] Part of Gap evidence Nos. 1 through 5, 7 (including a Serial number, hereinafter the same shall apply), Eul evidence Nos. 1, Eul evidence Nos. 8, Eul evidence Nos. 29 and 47, and the purport of the whole pleadings;

A. Summary of the parties’ assertion

As to the Plaintiff’s claim for confirmation of this part by asserting that there was no parental relation between the deceased and the Defendants, the Defendants asserted to the effect that the instant lawsuit is unlawful on the grounds that there is no benefit to claim confirmation of the absence of the parental relation, which is substituted for the dissolution of judicial relations, as the birth of the deceased and the Defendants, since there is no parental relation between the deceased and the Defendants.

B. Determination as to the existence of a natural parent-child relationship

According to the above facts, it is reasonable to view that there is no parental relation between the deceased and the Defendants respectively. As such, each report of birth filed by the Defendants as the natural father of the deceased is null and void, unless there is any special circumstance. Determination as to the existence of adoptive parent relationship exists.

1) Relevant legal principles

A report of birth of a natural father as an adoption shall be made by the parties to the adoption, and if the actual requirements of the adoption are different, the adoption shall take effect even if there are errors in the form thereof. In this case, a false report of birth of a natural father shall function as a report of adoption publicly notifying the adoptive relationship of a person related to the adoptive parent. Here, in order to determine that the actual requirements of the adoption are met, there is an agreement of adoption, a person under the age of 15 shall be a legal representative's abortion, and the adoption shall not have any ground for invalidation of the adoption as prescribed in each subparagraph of Article 883 of the Civil Act, including the existence or extension of the adoptive parent, and the adoption shall not necessarily involve a fact of living as an adoptive parent, such as care and custody. In addition, even if the report of birth of the natural father fails to meet the actual requirements at the time of the report of adoption, if the report of adoption becomes null and void, it shall not be deemed null and void as a report of adoption, but it shall not be deemed null and void as a report of adoption.

In light of the following circumstances, the report of birth was made according to the period of attending school of the Defendant, the deceased’s father appears to have raised the Defendants, who were the mother of the Defendant, from the time of marriage before the deceased’s husband and wife was married, the report of birth was made with the initiative of the deceased’s husband and wife in only one year and ten months since the married couple was married, and as seen below, the Defendant transferred to Seoul with the father’s father and five years after the birth report was filed by the Defendant, the evidence submitted by the Defendants were all comprehensively considered, and there is insufficient evidence to acknowledge that the adoption was the actual requirements at the time of the report of birth with respect to the Defendants, and there is no other evidence to acknowledge this otherwise. The Defendants’ assertion that this part of this case’s adoption was effective at the age of 15 years only.

Considering the overall purport of the arguments as to Gap's evidence 7, 10, and Eul evidence 4 through 6, defendant Byung resided in "0, Jung-gu, Seoul" from August 30, 1974, and the defendant Eul also resided in "0, Jung-gu, Seoul" from May 12, 1979, and moved into "00, Jung-gu, Jung-gu, Seoul". The defendant's father's father's father's father's non-resident's domicile was "578, 00, Jung-gu, Seoul" and the defendant Eul's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's non-resident's 9.

을 제 7 내지13, 16 내지 19,21 내지 28,41호증의 각 기재, 증인 경의 증언에 변론 전체 의 취지를 종합하면, 무는 1984.~1985.경 사망한 사실(피고들의 2019. 10. 17. 자 준비 서면 에 첨부된 가계도에는 무 의 사망일자가 "1984. 12. 16."로 기재되어 있으나 , 답변서 에서는"1985. 10.26."로 기재되어 있다), 피고 을 은 1986.경 혼인하였는데 , 그 무렵 부산 중구 중앙동4가 00로 거주지를 옮겨 독립한 사실, 피고 을 의 결혼식에는 망인 부부 가 혼주로 참석한 사실, 1987.경 제작된 족보에는 피고 을이 망인의 친자로 기재 되어 있는사실(무 의 양자로 도 기재되어 있다),피고 을 은 2005.경 망인의 고희연 을 차려 준 사실 ,망인은 2009. 12.경 △병원에서 위암수술을 받았는데, 당시 병원비 를 피고 을이 결제한 사실(2019. 12. 30.자 카드사용내역),망인은 2016.8.경 고관절 수술 및 입원 치료 를 ,2017.3.경 무릎인공관절 수술 및 입원치료를 받았고,2018.7. 경통풍 으로 , 2019. 1. 경심부전으로 각각 입원치료를 받았는데, 망인이 거동하기 힘들 때 피고 을이 망인 을 업어서 차 에 태워 통원시켜 주었고, 2018.경 정이입원하여 망인 혼자 집 에 남았을 때에는 거의 매일 망인의 집을 드나들며 망인을 돌본 사실, 피고 을 은 망인 으로부터 2018.4.3. 11,103,610원, 2018.5.31.1,000만원을 지급받아 망인의 병원비 에 사용한 사실 ,피고 을 은 2018. 7.경 망인 부부가 거주할 아파트에 관한 전세계 약 을 자신 명의 로 체결한 사실, 피고 을 은 2018. 10. 10. □산업개발(주)와 사이에 망인 부부 가 거주 하던 주택의 리모델링 공사계약을 대금 5,900만원에 체결하고, 2018. 10. 8. 및 2018. 10. 15.피고 병 명의 계좌를 통하여 공사업자에게 합계 3,500만원을 지급하였고 , 2018. 10. 7.부터 2018.12.25.까지 피고 을 명의 계좌에서 합계 20,258,000 원을 지급 한 사실 , 피고 을 은 정로부터, 2018.9. 28. 1,000만원, 2018. 10.8.2,000만원 합계 3,000 만원 을 지급받아 공사대금에 충당한 사실, 정은 2018. 10. 17. 사망하였는데, 피고 을이 상주 로 장례절차를 주관하였고, 망인이 2019.2.24. 사망하였을 때에도 마찬 가지 였던 사실 , 2005.경부터 망인의 주택 중 일부를 임차해온 경은 망인과 피고 을이 서로 친 부자 ( 親 父子)관계에 있는 것으로 알고 있었던 사실이 인정된다. 위 인정사실에 의하면 , 망인 과 피고 을 사이에는 무가 사망한 이후부터는 양친자로서의 신분적 생활 사실 이 존재 하고 다른 입양무효사유가 존재하지 않아 입양의 실질적 요건을 갖추게 되었다고 봄 이 상당 하고, 망인이 2018. 여름 정이 입원한 무렵부터는 평소와 달리 같은 말 을 반복 하고 피고 을을 비롯한 주위 사람들을 못 믿겠다는 하소연을 하는 등 심리적 으로 불안정 해 보였다고 진술한 증인 경의 증언과, 망인이 피고들을 상대로 친생자 관계 부존재 확인 의 소를 제기하였을무렵에는 망인의 상태가 치매에까지는 이르지 않았더라도 경도 의 인지 장애 상태로서 전반적인 인지기능이 저하되어 있었던 것으로 보이는 점 등 의 사정 에 비추어 보면, 망인이 사망하기 직전에 피고들을 상대로 친생자관계 부존재 확인 의 소 를제기한 사정만으로 위와 같은 판단을 뒤집기에 부족하고 달리 반증 이 없다. 따라서 피고 을 에 대한 친생자 출생신고는 소급적으로 입양신고로서의 효력 을 갖게 된다고 할것이므로, 망인과 피고 을 사이에는 양친자관계가 존재한다고 할 것이다.

B. Judgment on Defendant C

In full view of all the evidence submitted by the Defendant, it is insufficient to recognize that the Defendant had a family member’s status as an adoptive parent from the death of the deceased at the same time after the death of the deceased between the Defendant and the Defendant, and there is no other evidence to acknowledge this. Therefore, the report of birth on the Defendant C is not effective as an adoption report. Therefore, it is difficult to view that there exists a adoptive parent relationship between the deceased and the Defendant C. This part of the Defendants’ assertion is without merit

D. Part on the claim against Defendant B in the instant lawsuit

In such a case, barring special circumstances, such as where it is necessary to resolve the parental relationship by the dissolution of the adoptive relationship between Defendant B and the deceased, the claim for confirmation of the absence of the parental relationship between the deceased and the non-existence of the legal parent relationship cannot be allowed (see, e.g., Supreme Court en banc Decision 2000Meu1493, May 24, 2001). In addition, the claim for judicial dissolution of the adoptive relation is an exclusive right, and it cannot be exercised by a person other than the right holder instead of the right holder. This also applies to the claim for confirmation of the existence of the parental relation in lieu of the judicial dissolution of the adoptive relation. Accordingly, the claim for confirmation of the non-existence of the paternity relationship between the deceased and the Defendant between the deceased and the Defendant is unlawful as there is no benefit of lawsuit.2) Of the lawsuit in this case, the claim against the Defendant C in this case against the Defendant.

As seen earlier, there is no parental relation between the deceased and the adoptive parent relationship between the defendant and the deceased. Therefore, the plaintiff has the interest to confirm it for the correction of the family relation register as the birth of the deceased. The plaintiff's claim for this part is with merit.

3. Conclusion

Thus, the part of the claim against the defendant Eul among the lawsuit of this case is unlawful and dismissed, and the claim against the defendant Byung is accepted as reasonable.

Judges Jeong-il