생물학적 부모, 법적 부모, 그리고 사회적 부모 - 아동 복리 우선의 관점에서 본 친자관계 확정을 중심으로 -

Abstract

Article 844 of Korean Civil Code is the presumption clause that a child born by a wife married with a husband within certain period during and after marriage and its closure is considered to be a child of that husband. This clause is one of main legal provisions based on which to decide a legal father depending on the period of birth. Before the revision of Korean civil code in 2005, articles 847(1) provided that a presumed legal father shall bring a cancellation suit after he knew his wife gave a birth to a child; otherwise he could not deny his legal fatherhood. This provision was declared, in 1993, by the Korean Constitutional Court to be incompatible with Korean Constitution because it infringed the self-determination by a husband of whether or not he is responsible for the maintenance of a child who has no biological connection with him. Before that decision, the plenary session of Korean Supreme Court in 1983 decided that article 844 did not apply to the case where a wife conceived a child during the time when the spouse did not live together. Thereby, Korean Supreme Court seems to have wanted to reduce possibility of unconstitutionality of that provision to some extent. This paper argues that, in order to respect the intention of 2005 reformation of articles 846, 847, article 844 must be interpreted literally. To support this argument, this paper compares the parenthood laws in England and Germany, and concludes that Korean law related to the rebuttal of parenthood, articles 846 and 847, is focused on the protection of child welfare to the effect that parenthood should be fixed as early as possible unless the legitimate interest of parents is neglected. This paper however argues that articles 846 and 847 do not pay legitimate respect to the interest of a child to know who are biological parents. In other words, a child should have an opportunity to know his or her biological parents or to sever the relation with his or her parents who have not cared for him or her. Lastly, this paper suggests that the uncertainty about parenthood in the case where a child is born with assisted reproduction should be removed by legislation.