친자관계의 결정에 관한 법적 쟁점 분석

Abstract

In recent years, interest in legal parentage has been gradually increasing. One of the reasons is that the parts that were accepted without any problems beforehand are being developed in various aspects with the change of reality of the times. In this paper, we summarize the main contents of legal issues that are particularly important in terms of the determination of parentage. 1. Although not expressly provided for in Article 844 of the Civil Code, only children who are subject to presumption of paternity should be regarded as a child born in wedlock. Domestic practice and many theories have classified ‘a child born within 200 days from the date of marriage’ as a child born in wedlock, but the theory of interpretation that this child is the object of affiliation as a child born out of wedlock is the most natural. 2. With regard to affiliation with the Judicial Permission, there are issues that are not easy to solve in various aspects, such as when they come into effect, their legal meaning, and the scope of their application. 3. On the one hand, there can be no basis for total denial of affiliation of mother under Article 855 (1) of the Civil Code, but on the other hand, if a mother intends to report birth, it is required to attach a birth certificate which is a written proof of childbirth, and if a mother intends to affiliate his/her child, it is not advisable that the mother-child relationship be recognized without such a proof. 4. The trial procedure for the establishment of the mother-child relationship of a child born out of wedlock shall be regarded as possible only by the claim for affiliation against mother under Article 863, 865 of the Civil Code. However, if we admit that the establishment of the mother-child relationship is based on pregnancy and delivery, we can consider improving the system in the direction of accepting a confirmation claim of parentage existence as in current practice. 5. If with regard to a child born out of wedlock who gave birth between a father and a woman other than the wife, a father reports birth as a child born in wedlock between a father and the wife, and then there is given a confirmation judgment of parentage non-existence between the child and the mother, it is said that such a report of birth has become invalid as a result, and therefore, the validity of the affiliation on the birth report cannot be recognized.