친생추정의 한계 및 친생부인의 소의 원고적격

Limit of Presumption of Paternity and Standing in a Lawsuit for the Denial of Paternity- Supreme Court Decision 2012MU1892 Delivered on October 11, 2012 and 2013MU4591 Delivered on December 11, 2014 -

The presumption of paternity can be applied only to fathers and their socially real sons. Here is a case in point. D divorced E by agreement and remarried A, but nevertheless, D kept bringing up C as ever until C got married. D did not mention to anyone, not to mention C, about the birth of C for 50 years until he died. D believed C was his real child not only in those days when he got the birth of C registered but also since that time, and had built a social relationship with C. D and C had no a biological blood relationship, but in social terms C was a son of D. Thus, C was born during the marriage to which the presumption of paternity could be applied. Accordingly, the father-son relationship between D and C can be reversed only by a lawsuit for the denial of paternity. Therefore, it is not legally appropriate for the third party, the remarried wife A, to raise an objection to it by filing a lawsuit for the affirmation of non-existence of father-son relationship. At this, the Supreme Court dismissed the claim of the affirmation of non-existence of father-son relationship. The author agrees with the results but does not agree with the reason. Meanwhile, in terms of conjugal equality, it is asked to give mothers a right to deny their maternities like fathers have a right to deny their paternities. The right is limited to mother who bore a son with her husband concerned with the presumption of paternity, but it is not applied to remarried wives. It is appropriate for the Supreme Court to justify it on the basis of systematic and historical interpretation.