Scope of application of presumption of paternity as to a child born in wedlock

Article 844 of the Civil Act, which provides for the presumption of paternity, provides for the maintenance of family peace, applies without exception as long as the family is maintained. However, in the event that the family is already broken down and the purpose of the above provision is lost, the effect of the presumption of paternity shall not be extended not only to the case of the lack of the husband and wife’s agreement, but also to the case of genetic placement as well as to the case

Articles 844 and 865 of the Civil Act

Supreme Court en banc Decision 82Meu59 delivered on July 12, 1983 (Gong1983, 1259)

Plaintiff (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Defendant 1 and one other

1. Ascertainment that there is no parental relation between the Defendants.

2. Litigation costs shall be borne by the plaintiff.

The same shall apply to the order.

1. Factual basis

The following facts can be acknowledged in full view of the statements in Gap evidence 1 through 5 and witness testimony of the whole purport of the pleading:

A. On November 29, 1985, the Plaintiff became aware of Defendant 1, who had been operating a new store in the same building while working as a pharmacy employee, and was married on August 20, 1986.

B. The Plaintiff became aware of Nonparty 1 during the first year of high school in 1980 and was teaching materials from 1983. At the request of Nonparty 1 who became aware of the Plaintiff’s marital relationship with Defendant 1, the Plaintiff and Nonparty 1 came to have sexual intercourses from January 1, 1986 and around June 1986.

C. Around April 20, 1987, the Plaintiff gave birth to Defendant 2, who is an infant. Since the Plaintiff and Defendant 1 reported Defendant 2 as a child during marriage, Defendant 2’s father on the family register was registered as the Plaintiff.

D. The Plaintiff and Defendant 1 shared consultations on October 5, 1992.

E. On September 27, 1993, the Plaintiff and Nonparty 1 married and completed a marriage declaration.

F. The blood type and gene type assessment results of the Plaintiff, the Defendants, and the Nonparty are as follows (the Plaintiff was given a direct birth to Defendant 2, and thus, is on the premise of a mother-child relationship between the Plaintiff and Defendant 2).

(i) blood type and organizational suitability flight type;

+---------------------------------------------------- +

|피감정인 | ABO형 | HLA-A형 | HLA-B형 |

|---------|-------|-----------|----------|

| 소외인 | A | A24, A30 | B13, B61 |

|---------|-------|-----------|----------|

| 피고 1 | B | A2, A11 | B38, B51 |

|---------|-------|-----------|----------|

| 원고 | O | A2, A24 | B35, B48 |

|---------|-------|-----------|----------|

| 피고 2 | A | A2, A30 | B13, B35 |

+---------------------------------------------------- +

(A) Blood type test result: Defendant 2’s blood type A is Defendant 2’s blood type, and her mother’s blood type O, Defendant 1 cannot be his father, and Nonparty 2 is his father.

(B) Inspection results of HLA-A: Defendant 2’s HLA-A type is Defendant 2 and A30, and mother’s HLA type A2 and A24, Defendant 1 is not the father of Defendant 2, and Nonparty 2 is the father of Defendant 2.

(C) Inspection results of HLA-B: Defendant 2’s HLA-B type B13 and B35, and mother’s HLA-B type B35 and B48, Defendant 1 is not the father of Defendant 2, and Nonparty 2 is the father of Defendant 2.

(2) Results of genetic type tests

+-------------------------------------------------------------- +

|피감정인 | 소외인 | 피고 1 | 원고 | 피고 2 |

|---------|----------|----------|----------|----------|

|MCT118형 | M33, M24 | M24, M18 | M21, M18 | M33, M18 |

|---------|----------|----------|----------|----------|

|apoB형 | A39, A38 | A39, A37 | A41, A39 | A39, A39 |

|---------|----------|----------|----------|----------|

|YNZ22형 | Y6, Y4 | Y10, Y2 | Y7, Y1 | Y7, Y6 |

|---------|----------|----------|----------|----------|

|TC-11형 | T7, T5 | T5, T5 | T6, T5 | T7, T5 |

|---------|----------|----------|----------|----------|

|vWF형 | F7, F6 | F8, F3 | F6, F5 | F7, F6 |

+------------------------------------------------------------ +

+---------------------------------------------------------------------------- +

|피감정인 | 소외인 | 피고 1| 원고 | 피고 2 |

|---------|-------------|---------|-------------|--------------|

|MBP형 | L5, L4 | L5, L1 | L4, L1 | L5, S1 |

| | H8, H6 | H6, H3 | H4, H3 | H8, H3 |

| | 17-12, 16-11| | 16-08, 14-11| 17-12, 16-08|

|---------|-------------|---------|-------------|--------------|

|Co12A1형 | C30, C30 | C48, C30| C50, C30 | C30, C30 |

|---------|-------------|---------|-------------|--------------|

|SE33형 | S17, S8 | S10, S7 | S11, S9 | S17, S11 |

|---------|-------------|---------|-------------|--------------|

|D21S11형 | D3, D3 | D2, D1.5| D3, D2 | D3, D2 |

+---------------------------------------------------------------------------- +

Since the gene type test results are as above, Defendant 1 is unlikely to be the father of Defendant 2. On the other hand, considering the frequency of the gene type development by ordinary male in our country, Nonparty 2’s possibility of being the father of Defendant 2 is 9.9997%.

G. At present, the Plaintiff and the Nonparty are bringing up Defendant 2.

2. Determination 1: The position of party members on the interpretation of Article 844 of the Civil Act;

(a) Presumption of the paternity of a child born in marriage and his/her father;

(1) Provisions of the Civil Act

Article 844(1) of the Civil Act provides that the wife shall be presumed to be the father's child, and Article 844(2) of the Civil Act provides that a child born within 200 days from the date of the formation of the marriage or within 300 days from the date of the termination of the marriage shall be presumed to have been dead during the marriage.

As can be seen, the father of a child who is subject to the presumption of paternity may bring the action of denial of paternity within one year from the day on which he or she becomes aware of the birth of the child, thereby impairing the presumption of presumption. On the other hand, another person cannot be recognized as a person, and if any person except the father (excluding any exception), even a mother or a person who is even a mother or a person who is subject to the presumption of paternity, can not destroy the presumption of presumption of paternity by means of the action of confirmation of the existence of paternity.

(2) The purpose of the Civil Act

The purpose of the Civil Code is to protect the peace of the family, first, is to protect the peace of the family. If a third party is up to a peaceful family and the consciousness between the couple is not the self-determination of the couple or it is allowed to claim it as one's own consciousness, the secret privacy of the couple can only be disclosed in the trial process dealing with the dispute, and the peace most may be destroyed by it.Second, it is to protect the status of the person who has no choice but to grow under the care of the parent by establishing the relation between the father and the father, which is the basis of the family, early at the early stage.

As to the above provisions of the Civil Code, there is criticism that it is not consistent with the times according to the development of science and changes in social perception, and it is today's reality that criticism is being raised from the perspective of equality of men and women.

Article 17 of the Constitution provides, “All citizens shall not be infringed on the privacy and freedom of private life,” and Article 36(1) of the Constitution provides, “Marriage and family life shall be established and maintained on the basis of the dignity and gender equality of individuals, and the State shall ensure this.” Although there is no justifiable aspect in criticism of the above provisions of the Civil Act, in light of the spirit of the above Constitution, the purpose of the Civil Act, such as the protection of family privacy, the protection of family peace, and the guarantee of the stable status of children, is not to change according to the situation of the Maco age.

(3) The scope of the presumption of paternity

If the Supreme Court en banc Decision 82Meu59 Decided July 12, 1983 ruled that the effect of the presumption of paternity extends to a father-child relationship against the true blood relationship without any exception, it may result in compelling the parties to only unnecessary pain. This is contrary to the purpose of the Civil Act. Therefore, the Supreme Court en banc Decision 844Meu59 Decided July 12, 1983 applies to the case where the father-child relationship is born by living together with the couple and the wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's wife's husband's wife's wife's wife's wife's wife's wife's wife's wife's husband's wife's wife's husband's wife's wife's wife's husband's wife's wife's husband's wife's wife's wife's husband's wife's husband's wife's husband's wife's husband's husband's wife's husband's wife's wife's wife's husband's husband's husband's husband's husband.

(4) Whether the effect of presumption of paternity is affected by blood-type disposition, etc.

Even in the position of the limited theory, there may be a variety of opinions as to whether the effect of the presumption of paternity is affected by a specific case, depending on a specific case. One of them is blood-type position. Since the absence of a father-child relationship can be clearly revealed through a blood-type examination in accordance with the rules of natural science, there is a view that the absence of a father-child relationship is apparent in a case where blood-type is contrary to the rules of natural science, and that the effect of the presumption of paternity does not extend to the case of blood-type position. However, if the interpretation that the effect of the presumption of paternity does not extend to the case of blood-type position, the litigation process is inevitable until the blood-type examination process is conducted, and the contents of family confidential information will be cut to the trial process, and therefore, there is a dissenting view that the purpose of the Civil Act to protect family peace is to be expressed.

The view of the party members on this point is as follows.

Article 844 of the Civil Act, which provides for the presumption of paternity, is a provision for the maintenance of the peace of the family, and it should be applied without exception as long as the family is maintained.Second, in the event that the family is already broken down and the purpose of the provision of Article 844 of the Civil Act is lost, the presumption of paternity shall not be effective not only in the case of lack of a husband and wife’s book (Dong) but also in the case of the arrangement of blood types, but also in the case of the arrangement of gene types. In a case where the purpose of the provision of Article 844 of the Civil Act is lost, it is because it is because

If more specifically explained, the person(s) who intends to dispute the paternity of the person(s) who was born during the marriage by means of the action of confirmation of paternity or the existence of the father(s) must prove that the family to which he(s) belongs has broken down, and that there is no agreement between the husband(s) and the wife(s) or the arrangement of blood type or arrangement of gene types

Therefore, a court shall dismiss a lawsuit without the need to proceed to a trial, such as lack of a husband and wife’s consent, blood type tests, and genetic testing, if the family to which he or she belongs is not extinguished, and shall continue to hold a trial on the remainder of the family to which he or she belongs, only when the family to which he or she belongs is extinguished. This interpretation may prevent the infringement of the privacy of the unnecessary couple in the trial process.

In light of the above en banc decision of the Supreme Court, "Article 844 is prepared for the peace of the family, as well as the provision on the action of denial of paternity under Article 846, which is established for the peace of the family, on the premise that the husband and wife is living a normal marital life." Thus, it is considered that the failure of the family is not against the decision of the above Supreme Court, but against the decision of the above Supreme Court, the position of the party members who interpret the failure of the family as one of the litigation requirements in the action for confirmation of denial of paternity by deeming the failure of the family as one of the requirements for the application of Article 844 of the Civil Act.

3. Determination 2: Review of the instant case

Based on the above theory, the matter of this case is examined as follows.

Defendant 2 was born during the marriage of Defendant 1 by the Plaintiff, but the Plaintiff and Defendant 1 were divorced on October 5, 1992. In addition, as a result of blood type tests, systematic synthetic navigation test, and gene type tests, Defendant 1 cannot be the father of Defendant 2. Therefore, Defendant 2 is not subject to the presumption of paternity under Article 844 of the Civil Act (which is a person who was born during the marriage of the Plaintiff and Defendant 1, or a person who was born during the marriage of Defendant 1, or who was not subject to the presumption of paternity).

In addition, in light of the fact that the Plaintiff is Defendant 2’s mother and the purpose of this case’s lawsuit for the enhancement of the contents of the family register, the Plaintiff’s claim for confirmation of non-existence of paternity between the Defendants is lawful.

Furthermore, in light of the result of the examination that Defendant 1 and Defendant 2 cannot become the father of Defendant 2 when the Plaintiff gave birth to Defendant 2 on April 20, 1987 with a sexual intercourse with the non-party 1 on June 1986 when the Plaintiff was in a marital relationship with Defendant 1, and on the premise that the Plaintiff is the mother of Defendant 2, it is determined that there is no parental relationship between Defendant 1 and Defendant 2.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted, and the costs of the lawsuit are assessed against the plaintiff who provided the cause of the lawsuit of this case.

Judges Park Jae-chul