성전환자의 부자관계에 관한 소고-일본 最高裁判所 第三小法廷 2013年 (許)第5号 決定의 평석을 중심으로-

Abstract

There has been raised a question that the standard that determination of father-son relationship should be set according to blood relationship under the family law must be modified now through the academic circles’ criticism all this while and progressive alleviation of the standard of some precedents. However, the standard of father-son relationship consequent on the blood relation principle is still boasting of its firmness; all the more so in the Oriental society like our country. Nevertheless, it is difficult to affirm the validity of the standard in the light of the modern test-tube reproduction technology only through blood relationship. Recently, the supreme court of Japan did state that in case a father has a baby by agreeing to his wife's artificial insemination although the father got married by getting gender designation treatment change according to the law on a special case of gender designation treatment under the Japanese law, the child should be added to the family register as a legitimate child as the child is presumed to be the real son of the father who got gender designation change through No. 5 decision on the 25th Pyeongseong Year at the 3rd sub-court of the supreme court(最高裁判所 第三小法廷 平成25年 (許)第5号 決定); this ruling is rated as taking a step forward from the existing discussion on father-son relationship standard in artificial insemination. It’s because the supreme court clearly stated that the existing point of view that a person, who was born through artificial insemination with a donor’s semen, can get the legal principle of presumption of paternity according to the theory of outer appearance can be equally quoted to a transsexual as above. Likewise, our country also acknowledges sex change through a court’s decision, and a transsexual consequent on such a decision has no choice but to rely on artificial insemination actually in order to have a child; thus, it might be significant to look into the cases of our neighboring country-Japan for the purpose of coping with the legal dispute that could take place in the future.