법적인 ‘아버지’를 결정하기 위한 요건들에 관한 일고찰―미국에서의 논의를 중심으로―

Abstract

In United States, Many state laws expresse the legislative belief that biological ties are not only an adequate basis for parental responsibility, but that they are the only basis for father-child relationships that will withstand court challenge. Courts, however, have often expressed uneasiness with this strong reliance on biology. They face situations in which a paternity determination based solely on the outcome of genetic testing will greatly disturb the status quo. The deep social and cultural ambivalence occasioned by the splintering of fatherhood into scientifically-verifiable biological and social relationships is reflected in the doctrinal chaos in the law concerning the marital presumption of paternity. Furthermore, another viewpoint is offered recently that suggests a different theory of paternity--one that can reconcile much of the case law, constitutional doctrine, and contemporary mores. It reveals that courts often root paternal obligation in contract with the mother, not biology. Such an extraordinary lack of consistency among the states and often within an individual state is called into question is deeply troubling in United States. But thorough understanding many articles and opinions tried to get over this chaotic situation will be very useful in interpreting and looking over many articles in Korean Civil Code concernig establishment of paternity.