‘혼인종료 후 300일 이내에 출생한 子’의 친생추정에 관한 연구

Abstract

There may be a point of view that it is okay even though the standard for the presumption of paternity is unreasonable, because the Civil Law provides a possibility to nullify the presumption of paternity through the denial procedure. But because the legal effect for the presumption of paternity is so strong that, as long as the presumption maintains the effects on the fundamental rights of mother, legal father, biological father, and child are too serious. Therefore, in order to lay a burden of denying paternity on parents, we should reconsider the rationality of the presuming standard, not to assume that the denial procedure could easily cure its irrationality. The standard for the presumption of paternity which is called “a child born within 300 days after divorce” was first enacted in Japanese Civil Law section 772 in 1896, and after that it was introduced to Korean Civil Law section 844 in 1958. Such regulation was reasonable then, because it was based on the situations of the 19th and early 20th centuries. But nowadays in 21th centuries when remarkable social·medical·legal changes have taken place, forcing the standard of 19th centuries without no exception has become unreasonable. So in order to offer a reasonable solution, we should bring reality into Korean Civil Law. In this situation, the case of ‘Japanese Civil Law’ (which solved the same problem through the guideline of Ministry of Justice) and the case of ‘German Civil law’ (which excluded the presumption of paternity from the legal father when a child is born after a divorce suit and the biological father acknowledge the paternity of the child) could suggest a lot of implications to the amendment plan for Korean Civil Law section 844.