친생추정의 범위에 관한 무제한설의 재조명

• 영문명: A Revisit to the Non-Exception Theory on the Presumption of Paternity: on Supreme Court Cases no. 2016Mu2510 and 2021Mu13293
• 발행기관: 한국가족법학회
• 저자명: 조인영(Inyoung Cho)
• 간행물 정보: 『가족법연구』家族法硏究 第36卷 1號, 357~394쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.03.31

영문 초록

According to the Korean Civil Act, the father of a child born from a matrimonial relationship shall be presumed to be the husband of the mother of the child. Once such presumption is made, it can be rebutted only by the denial of paternity claim, which can be raised by each spouse within 2 years after he or she finds out the falsity of the presumption. Presumption of paternity has been recognized in Korea as well as in many countries, as father-child relationship is hard to be proven by externals, unlike mother-child relationship. However, as Korean Civil Act had prescribed the filing period for the denial of paternity claim too short(within 1 year after the father becomes aware of the birth of the child), the Supreme Court contrived so-called ‘exception by externals theory’, according to which the presumption is not made when it is evident from externals that the married couple did not live together. Now with new biological technology and DNA tests, it has been argued whether there is a need to set up different criterion to such exception theory or to expand more exceptions. Still, Korean Supreme Court recently adjudicated that presumption of paternity should be maintained even if such presumption was found to be false after DNA tests, and reiterated the exception by externals theory. This article reviews the origin and relationship between the presumption of paternity clause and the denial of presumption clause, and suggests the exception theory should be overturned since the filing period for the denial of presumption has been adequately extended after the constitutional court’s decision, thus leaving no need to adopt exception theories any more. In order to protect the proper interests of the child and the biological father, however, it is imperative that the current Korean Civil Act should be revised to allow locus standi to the child and to the biological father as soon as possible.

목차

Ⅰ. 들어가며

Ⅱ. 친생추정의 의의 및 친생부인과의 관계

Ⅲ. 친생추정의 예외 인정 여부

Ⅳ. 비교법적 검토

Ⅴ. 민법 개정의 필요성

Ⅵ. 결 론

키워드

친생추정 친생부인 무제한설 외관설 친생부 presumption of paternity denial of paternity claim non-exception theory exception by externals theory biological father