「친생자관계부존재확인의 소」에 관한 개정 논의―허위의 친생자 출생신고에 따른 사회적 친자관계의 보호를 중심으로―

Abstract

This article reviews and analyzes precedent court cases that recognize the validity of adoption in fraudulent birth registration prior to the revision of the Civil Code in 2012. It also discusses the need for and measures to protect the ‘social parenthood,’ after the Civil Code revision in 2012 focusing on revising the action for confirming the non-existence of parentage. Analyzing the precedent court cases up until recently, the court has recognized the validity of adoptions under certain conditions by interpreting fraudulent birth registration, in order to protect the relationship between parties who have socially and emotionally established a parent-child relationship for decades. However, under the current adoption system, which is a legal requirement for permission from the family court, when a fraudulent birth registration is filed without permission from the family court, the valid of adoption cannot be recognized. Therefore, there are limits to protecting social parenthood through legal interpretation in cases where fraudulent birth registration have been made, and legal amendment should be sought to protect such relationships. In order to protect social parenthood, the minimum requirements such as ‘intention to establish parent-child relationship, the burden of parenting responsibility, and duration of maintaining the parent-child relationship’ should be considered. Additionally, when deciding who is the legal parent, ‘the best interests of the child’ must take precedence.