[1] Method of proving the parent-child relationship in a recognition suit

[2] The case reversing the judgment of the court below which rejected the remainder of the entrustment of appraisal and the evidence after taking a significant result of the entrustment of appraisal only when a certain premise is satisfied among the two entrustments of genetic appraisal, which are contrary to the contents of the entrustment of appraisal

[3] Whether the presumption of the entry of the family register on the premise of an appraisal in a gene assessment for the verification of paternity has the burden of presumption (negative)

[4] A stamp suit and ex officio examination of evidence

[1] In proving the existence of a major fact, such as the parent-child relationship between the father and the father, whether there exists a family relationship between the father and the father, whether there is a possibility of the family relationship with another man, whether there exists a speech or behavior to inferred the father to believe the father as his own person, and whether there is an element to exclude or affirm the parent-child relationship as a result of a humanology test, blood type test or genetic testing between the father and the child, or whether there is an element to confirm the existence or absence of the parent-child relationship based on an indirect method of proving the existence or absence of the material fact based on an empirical rule. In this context, if the scientific method of proof, such as blood type tests or genetic testing, is proved to be true and it is recognized that the scientific method of proof is so severe that there is no possibility of mistake or disregard, such a method of proof would be the most powerful indirect method.

[2] The case reversing the judgment of the court below which rejected the remaining results of the appraisal entrustment and the evidence after taking a significant result of the appraisal entrustment only when a certain premise is satisfied among the two entrustments of genetic appraisal which are contrary to the contents in the recognition lawsuit

[3] Although the entries in a family register shall be presumed to be consistent with the truth unless there is a clear reflective evidence to reverse it, it shall be presumed to be consistent with the truth. However, this shall be related to presumption of kinship, death, etc. in general legal relations, in a scientific proof of a certain fact by the method of appraisal of chrone electronic system, the presumption of presumption of the family register cannot be applied to the facts which are the premise of appraisal, and in such a case, the party who invoked the method of appraisal shall prove that the premise is true.

[4] A recognition lawsuit is a lawsuit aimed at confirming the existence of de facto parent-child relationship between a father and a child and at establishing a legal parent-child relationship, and is related to the fundamental issue of human wheels, which has a significant impact on the law of the inheritance, and is also related to the public interest, and thus, an ex officio authority is adopted in this lawsuit. Therefore, if the party's proof is insufficient, ex officio investigation and necessary evidence should be conducted

[1] Article 863 of the Civil Act, Article 187 of the Civil Procedure Act / [2] Article 863 of the Civil Act, Article 187 of the Civil Procedure Act / [3] Article 863 of the Civil Act, Article 15 of the Family Register Act, Article 29 of the Family Litigation Act / [4] Article 863 of the Civil Act, Article 187 of the Civil Procedure Act, Article

[3] Supreme Court Order 80Da3073 delivered on December 8, 1981 (Gong1982, 167) dated November 27, 1997 (Gong1998Sang, 98) / [4] Supreme Court Decision 85Meu8 delivered on November 26, 1985 (Gong1986, 128)

Plaintiff (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Prosecutor of Incheon District Prosecutors' Office

The Intervenor joining the Defendant (Attorney Shin Young-chul, Counsel for defendant-appellant)

Seoul High Court Decision 99Reu1567 delivered on July 10, 2001

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

1. The judgment of the court below

A. The court below rejected the plaintiff's claim on the ground that it is not sufficient to recognize the plaintiff's claim on the grounds that the plaintiff's biological mother's non-party 1 was born during the de facto marital relationship with the deceased non-party 2 (hereinafter "the deceased non-party 2") who died due to a traffic accident on September 30, 197 and delivered the plaintiff on December 5, 1997, and the plaintiff's natural father's claim that the plaintiff is the deceased's natural father, only the plaintiff's testimony of evidence Nos. 5-1 to 11, and the first instance court's testimony of the non-party 5-1, and the result of the appraisal entrustment to ASEAN Co., Ltd. (hereinafter "the result of appraisal entrustment by the court below") as seen in the following B.

B. (1) The lower court acknowledged the following facts based on the evidence duly admitted.

(A) The Chief of Seoul National University Hospital (A) was entrusted with the appraisal by the first instance court. Under the premise that the deceased non-party 3 and the deceased's father, who are his children, and the non-party 1 are the biological parents of the deceased, and the non-party 4, 5, and 6, the deceased's children, and under the premise that the plaintiff's father is the plaintiff's mother, the head of Seoul National University University University University University University University University University University Hospital (the person in charge of the professor in charge) examined 27 genetic genes, and compared 13 genetic geness of which are variable-specific effective (electronics) among them, it is confirmed that the plaintiff's father's father, who are expressed in three genetic maps, cannot be seen as the gene type of the deceased's father's father's father's father's father's mother and the deceased's mother's mother's mother's mother's mother. Accordingly, the possibility of a sudden change in the 13 genetic unit does not exceed 2.

(B) Meanwhile, by taking advantage of the characteristics that X-chchloat was transferred to the mother’s test, AD Co., Ltd.’s appraisal commission and that X-chloat was used to analyze the opposing oil-based electronic system on 18 areas where the short X-chloat order was repeated in the X-chloat body of the Plaintiff and the Intervenor, and the Plaintiff’s genetic characteristics were included in the Intervenor’s genetic characteristics. As a result, according to the Plaintiff’s genetic characteristics, the Plaintiff’s 1711, which was found to be the Plaintiff’s 151,61, which was the Plaintiff’s 1715, which was the Plaintiff’s 171, which was the Plaintiff’s 1715, which was the Plaintiff’s 1715, which was the Plaintiff’s 1715, which was the Plaintiff’s 1716, which was the Plaintiff’s 1715, which was the Plaintiff’s 1716, which was the Plaintiff’s 1715.

(C) In this case’s genetic assessment method, the method of screening the upper chrone electronic assessment adopted by the Seoul National University Hospital was generally used, and the school room of the law of the Seoul National University, where the Lee Jong-dong, in charge of appraisal, has conducted the friendly assessment in the above manner since around 1991, about 1,500, and the method of appraisal using the X-FR adopted by the ADD Co., Ltd. for the first time in this case.

(2) After recognizing the above facts, the court below rejected the court below's determination on the following grounds: (a) the genetic difference between the nation and the people and the diversity thereof; (b) when distinguishing the paternity based on human body through genetic testing, it is possible to obtain accurate results to the extent of trust after a lot of prosecutor conducted to the extent that it can be excluded from the error that may occur in the course of conducting an inspection by investigating the confrontation-electronics for a considerable number of population groups over a long time; and (c) since it is difficult to see that the inspection conducted through X-Emare STR, which is the appraisal method adopted by AD Co., Ltd., the appraisal method adopted by AD Co., Ltd., has yet to be verified to the extent that the accurate results are more reliable than the result of the first instance court's entrustment; (d) there is no possibility that the relationship between the deceased and Nonparty 1 is relatively close to 100%, and there is no possibility that the difference between the deceased and the Intervenor's blood relationship cannot be acknowledged, even if there is no possibility of difference between the plaintiff and Nonparty 10.

2. Judgment on the grounds of appeal

A. In proving the existence of a major fact, such as the parent-child relationship between the father and the father, whether there exists a family relationship between the father and the father, whether there is a possibility of the family relationship with another male, whether there exists a speech or behavior to confluence the father to believe the father as his own person, whether there is a elements to exclude or affirm the parent-child relationship as a result of a humanology test, blood type test or genetic testing between the father and the child, and whether there is an element to confirm the existence or absence of the parent-child relationship based on an indirect method of proving the existence or absence of the material fact based on an empirical rule. In this context, if a scientific method of proof, such as blood type tests or genetic testing, is proved to be the truth, and if it is recognized that the scientific method of proof is so severe that there is no possibility of mistake or disregard, such method would be the most powerful indirect method of proof.

B. However, examining the relevant evidence, other than the result of the first instance court’s entrustment of appraisal, based on the records, it can be known that the Plaintiff was born as a natural father of the deceased and that there is no possibility that the Plaintiff was born as a natural father of the deceased. Thus, the court below’s decision that there is insufficient evidence to deem the existence of the parent-child relationship between the Plaintiff and the deceased among the evidence submitted in this case

(1) According to the records, the non-party 1 and the deceased were actually living together in the non-party 1's house located in Seo-gu, Incheon where the non-party 1's parents live from September 1996 to the non-party 1's house located in Seo-gu, Incheon where the non-party 1's parents live (However, since the defendant's dispute over this point, it is necessary to review more). The non-party 1 was dead at around March 1997 and the non-party 1 was born the plaintiff on around April 1997, and the non-party 1 was able to be seen as living together in full together in the non-party 1's house located in Seo-gu, Incheon, Seo-gu, 3 million won where the deceased was leased by the non-party 1 until the deceased was pregnant with the plaintiff on September 30, 1997, and there is a possibility that the non-party 1 might have been pregnant with the plaintiff on the other hand.

(2) According to ABO blood type, the deceased is an O type, and the non-party 1 and the plaintiff, respectively, do not interfere with the Plaintiff’s deeming the deceased as the natural father of the deceased.

(3) Although the result of the appraisal commission of the court below is based on X chchlograph method, it is difficult to view that there was an error in the theory itself, which is the premise of the method of appraisal. According to its appraisal, between the plaintiff and the intervenor, the mother of the plaintiff and the deceased, it appears that the opposing genetics in 18 STR coincides in all, and the probability of such an agreement between two persons, other than the near blood-related relationship, is 6 pairs in 11,175, and is merely 0.005369, it seems difficult to dismiss the outcome of the appraisal. Accordingly, if there was a difference between X chlograph method of the plaintiff and the intervenor, it is hard to view that there is no pro-child relationship between the plaintiff and the plaintiff, or that there is no such a scientific basis for the plaintiff's appraisal commission without any justifiable relationship, the plaintiff should be deemed to have been dismissed for the first time, and thus, it is more reasonable that there is no such scientific basis for the plaintiff's appraisal entrustment method of the deceased's.

C. Furthermore, we do not agree with the court below's rejection of the result of the appraisal commission by the court of first instance only based on the result of the appraisal entrustment entrusted by the court below and the plaintiff's rejection of the appraisal entrustment by the court below as a critical evidence as to the deceased's

According to the records, the result of the first instance court’s appraisal commission adopted as a conclusive evidence excluding the existence of the parent-child relationship between the deceased and the plaintiff is based on the upper chrone electronic method. This is premised on the condition that both the deceased and the non-party 4, 5, and 6, who are their siblings, are the deceased non-party 3 and the intervenors, without knowledge of the gene type of the deceased and the deceased. Therefore, even if one of the non-party 4, 5, 6, or the deceased is not the deceased non-party 3 or the Intervenor’s son, the gene type of the deceased’s son,5, 6, and the Intervenor’s gene type of the deceased, which is presumed different from the fact, and thus, the result of the first instance court’s appraisal entrustment conducted without proof of the existence of natural blood relationship, which is a prerequisite, is not consistent with the substantive facts (the parent’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son.

Although the entries in the family register shall be presumed to be consistent with the truth unless there is any clear reflective evidence to reverse them (see, e.g., Supreme Court Decisions 80Da3073, Dec. 8, 1981; 80Da3073, Nov. 27, 1997; 97Du4, Nov. 27, 1997); it is related to presumption of kinship or death in general legal relations; it is not possible to apply the presumption power of the family register as to the facts which are the premise of the appraisal in the scientific process of proving a certain fact by the above appraisal method; therefore, in such a case, the party who invoked the method of appraisal must prove the truth that the presumed fact is true. Therefore, the party who invoked the method of appraisal must prove it. Thus, it is erroneous in the judgment of the court below that the premise of the result of the entrustment of the first instance court on the ground that there is no objective evidence to suspect the blood relationship,

Therefore, the result of the first instance court’s entrustment of appraisal is worth being admitted as evidence only when it is proved that the conditions are met. If the premise that four parents of the deceased are the same, the result of the first instance court’s entrustment of appraisal is not meaningful unless it is proved that the four parents of the deceased are the same, it cannot be rejected by adopting it.

Nevertheless, in this case where the plaintiff actively contests the above premise condition, the court below adopted the result of the first instance court's entrustment of appraisal conducted without satisfying the above premise condition, and rejected all the remaining evidences consistent with the plaintiff's argument, including the result of the court below's entrustment of appraisal. In this case, there is an error of law that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or by misunderstanding facts in violation of the rules of evidence or by misapprehending the legal principles on the selection of appraisal result.

D. As a litigation aimed at determining the existence of the parent-child relationship between the father and the father and at establishing the legal parent-child relationship, it is the fundamental issue of the human body, which has a significant impact on the Family and Inheritance Act, and is related to the public interest, this litigation is adopted ex officio. Therefore, if the party's proof is insufficient, the court below should conduct an ex officio investigation and examine necessary evidence (see Supreme Court Decision 85Meu8, Nov. 26, 1985). In light of the records, first of all, the plaintiff asserted that the deceased and his face or the body of the body of the deceased were similar. Thus, the court below seems to have a need to further examine the above point. Furthermore, if the deceased non-party 3's remains are relatively well preserved and it is possible to extract DNA from the deceased non-party 3 (the intervenor consented to the excavation of a grave), it is more accurately possible for the plaintiff to find whether the deceased non-party 3 and the intervenor were the grandchildren's loss or not, and there is a need to further identify whether the defendant is a woman 4 and the body of the body of evidence.

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 Kim Ji-dam (Presiding Justice)