死後胞胎에 의하여 출생한 子의 상속권에 관한 연구
A Study on the Inheritance Rights of Posthumously Conceived Children
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The most common reasons to seek a paternity declaration are to protect legal rights to custody, support, or visitation. But none of these reasons apply to posthumously conceived children. So there are two reasons that posthumously conceived children for wanting a paternity declaration; one is the need for a public acknowledgment of his(her) parent, the other is the desire to establish inheritance rights. By dealing with these two concerns in one statute, there are very little room for a posthumously conceived children to establish paternity even in cases where no inheritance right exists. So it could be possible to allow any interested party to bring a paternity action for a posthumously conceived child at any time, even if no inheritance claim can be brought. For example, if certain conditions are met, the decedent is considered to be a parent of the resulting posthumously conceived child. Instead, the statute could specify that the decedent is the parent, but the child is not permitted to inherit in intestacy. The key is to separate the paternity declaration from the right to make a claim against the estate.
Abstract
The most common reasons to seek a paternity declaration are to protect legal rights to custody, support, or visitation. But none of these reasons apply to posthumously conceived children. So there are two reasons that posthumously conceived children for wanting a paternity declaration; one is the need for a public acknowledgment of his(her) parent, the other is the desire to establish inheritance rights. By dealing with these two concerns in one statute, there are very little room for a posthumously conceived children to establish paternity even in cases where no inheritance right exists. So it could be possible to allow any interested party to bring a paternity action for a posthumously conceived child at any time, even if no inheritance claim can be brought. For example, if certain conditions are met, the decedent is considered to be a parent of the resulting posthumously conceived child. Instead, the statute could specify that the decedent is the parent, but the child is not permitted to inherit in intestacy. The key is to separate the paternity declaration from the right to make a claim against the estate.
참고문헌 (13)
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- 이경희, "死後胞胎의 자기결정권에 관한 일고찰", 가족법연구, 21(3), pp.207~236 (2007), 한국가족법학회
- 정현수, "亡夫의 凍結精子에 의한 人工受精子의 法的 地位", 성균관법학, 18(2), pp.343~368 (2006), 법학연구소
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- Kayla VanCannon, "Fathering a Child From the Grave: What are the Inheritance Rights of Children Born Through New Technology After the Death of a Parent?", ~ (2004), 52 Drake L. Rev. 360
- Kristine S. Knaplund, "Equal Protection, Postmortem Conception, and Intestacy", ~, 53 U. Kan. L. Rev. 636
- Laurence C. Nolan, "Critiquing Society’s Response to the Needs of Posthumously Conceived Children", ~, 82 Or. L. Rev. 1092