부자관계의 결정기준: 혼인과 혈연

• 영문명: Presumption of Paternity and Its Exceptions
• 발행기관: 한국가족법학회
• 저자명: 현소혜(Hyun, Sohye)
• 간행물 정보: 『가족법연구』家族法硏究 第33卷 2號, 43~76쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.07.30

영문 초록

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 be the child of the wife’s husband(Korean Civil Act Article 844). However, the Supreme Court has declared that the presumption is excluded if there are apparent circumstances that the wife is not able to conceive her husband’s child(so called ‘appearance theory’). Such a practice, that is to acknowledge the exception of presumption, contradicts the concept of paternity presumption and makes it impossible to determine the father of the child at the time of birth, so it should be renounced. On the other hand, the types and the conditions of lawsuits for the rebut of paternity presumption are too restrictive to ensure the constitutional rights of children as well as biological fathers to form the legal family with their biological one according to the current practice. Therefore, it is necessary to open a gate for birth-fathers and children to overturn the paternity presumption by the action demanding confirmation of denial or existence of paternity.

목차

Ⅰ. 서 론

Ⅱ. 친생추정 제도의 목적

Ⅲ. 혈연진실주의의 실현을 위한 새로운 해석론의 제안

Ⅳ. 결 론

키워드

친생추정 친생부인의 소 외관설 혈연설 생물학적 부 presumption of paternity denial of paternity of child appearance theory lood theory biological father