친생자 추정이 미치는 범위와 그 한계 - 최근의 일본 최고재판소 판례(2014년 7월 17일 판결)를 소재로 하여 -

Abstract

While the mother-and-child relationship typically is established by the fact of birth, proof of the father-and-child relationship is not simple. In Korea, a child born to a married woman is fathered by her husband. Korean Civil Act provides that a child conceived by a wife during the marriage shall be presumed to be the child of the wife's husband(article 844 ①). Besides, considering the difficulty in proving of ‘a pregnancy during the marriage’, a child born after two hundred days from the day when the marriage was formed or born within three hundred days from the day when the matrimonial relation was terminated, shall be presumed to have been conceived during the marriage(article 844 ②). A child with this presumption of legitimacy is protected strongly, unless there is a denial of paternity that has strict requirements in its implement. However, this protection by presumption of legitimacy provision is so strict that legal parenthood sometimes can’t reflect the blood ties, which have always been a principal determinant of personal relationship. Precedents and legal theories, thus, have been attempted to preclude the presumption of legitimacy under a certain condition. The problem is what is the ‘Certain Condition’ and there are many differences between theories for this. On July 17, Supreme Court of Japan held as follows; “Even if it is clear from scientific evidence that there is no biological father-child relationship between a husband and a child who is presumed to be a child born in wedlock under Article 772 of the Japanese Civil Act, and the husband and the wife have already divorced and started to live separately and the child is presently taken care of by the wife, who has parental authority, the existence of the father-child relationship cannot be challenged by filing an action for a declaratory judgment on the nonexistence of a parent-child relationship.” (There were concurring opinions and dissenting opinions.) As everyone knows, with regard to the presumption of legitimacy and denial of paternity Korea and Japan have a almost same structure in their Civil Act. The judgement of Japanese Supreme Court above is the first one which dealt with a DNA test as the limitation of presumption of legitimacy, therefore, it is also worthy of study for us to understand a limit of the presumption of legitimacy in Korea. In this paper, I introduced the decision of Japanese Supreme Court above. Then, I examined precedents and legal theories related in Japan, including commentaries on this decision for more accurate understanding. At last, I tried to find something significant for the construction of Korean Civil Law.