친생추정의 법리와 혈연 진정성

Abstract

From the traditional society to the enactment of Korean Civil Law there are two legal bases to regulate filiation to somebody. The first is blood tie based on its veracity and the second is adoption. However, at that time the veracity of blood tie could have never been clearly confirmed, because of lacking of advancement in scientific technology. For this reason a child born after two hundred days from the day when the marriage was formed or within three hundred days from the day when the marital relationship is terminated is presumed to have been conceived during the marriage(Art. 844 of Korean Civil Law). This presumption could be eliminated only by the action of denial of paternity within two years from the day when he or she becomes aware of the cause of the action(Art. 847. Ⅰ). However, it might be too strict for the husband whose legal child has not blood tie with him, if he could eliminate his paternity only by the action of denial of paternity. Because from the viewpoint of the plaintiffship and period, the action of denial of paternity has very strict conditions. Namely, the action could be filed only by a legal father or mother and within short period of 2 years after getting to know that a legal child has not biological tie with him. For this reason, Korean Supreme Court has permitted the denial of paternity through action demanding confirmation of denial of paternity(Art. 865) for husband, by which the plaintiffship is accepted for any persons who have legal interest in confirming of paternity and the period filing the action is not limited, when it was very clear that the wife could not become pregnant for instance because of lacking living together. However, recently technological development like artificial reproduction and DNA test makes it much easier confirm the veracity of biological tie. It brings a question if the exception of the presumption of the husband’s paternity for the child shall be enlarged not only in case of lacking living together but also in the event of husband’s impossibility of reproduction or of child’s genetic mismatch with the legal father. From the critical aspect, firstly this paper examines which theory to decide legal paternity is the most effective in AID procedure for the best interest of a child. Secondly, it reviews the necessity and justification about magnifying exception of the presumption of husband’s paternity for a child are reviewed. Thirdly, it verifies which influence gives rise to the action of denial of paternity and action demanding confirmation of denial of paternity, when the exception of the presumption of husband’s paternity is magnified. Lastly which provisions shall be revised to guarantee the right to know the veracity about blood tie of a child and biological father.