민법상 친자관계의 결정

Abstract

Paternity is a relationship based on love and kinship, unlike a propertyrelationship. The current legal system provides various ways to determine paternity. What standards would be used to determine paternity between father(or mother) andchild? Will ties of blood continue to be a basis for relationship between father(ormother) and child? Or will it extend the case if left to the intention of parties? This paper will consider a presumption as husband’s child, an affiliation and alegitimation, decisions of paternity by a artificial insemination and a surrogate mother,an existence of paternity and legal principles of lapse, revisions of the Korean Civil Act. The 2017 revision of the Korean Civil Act, while reflecting the gist of thedecision of incompatibility with the Constitution which was made by theConstitutional Court on April 30, 2015, balanced blood relations, intention and thebenefits of children. However, if a marriage is virtually broken and a child is givenbirth by a non-legal spouse, then is there a presumption as husband’s child? In the past, blood relation was the only option for a parent to make a decision. Due to the development of science and medical technology, it has lost its ground. Inmodern societies, blood is not the only basis of paternity. Paternity must bedetermined comprehensively, taking into consideration the intention of the partiesconcerned as well. The Korean Civil Act was revised in 2017 in accordance with thedecision of the Constitutional Court in 2015, but the problems so far have not beenfully resolved. Some topics(a AID method of an artificial insemination, a surrogate mother and many others) still remain as problems. It is not desirable for a father(or mother)–child relationship decision to be madebased more on science in light of the trends in the morden family law emphasizingthe welfare of children. A father(or mother)–child relationship based on genetics caneasily be shown in scientific ways, but that is not the best way to solve the legalproblems arising from the paternity relationship.