친생자 추정 논의에 관한 법학방법론적 문제

Legal Methodological Issues on the Discussion on Presumption of Husband’s Paternity of Child

Paragraph 1 of Article 844 of the Korean Civil Code provides for “presumption of husband’s paternity of child”. According to this, “a child conceived by a wife during the marriage shall be presumed to be the child of the wife’s husband”(Paragraph 1), and the Civil Code makes it possible for this presumption to be reversed only by an “action of denial of paternity”(Article 847). However, criticism has already been raised for the system of “presumption of husband’s paternity of child”. It says that by strictly adhering to the system “presumption of husband’s paternity of child”, many irrational social problems are being caused. For this reason, a lot of theories are trying to admit an exception to the system “presumption of husband’s paternity of child” on various grounds. The judicial case of the Korean Supreme Court also admits an exception to the system “presumption of husband’s paternity of child” according to the “appearance theory”. Furthermore, the Supreme Court is currently discussing whether it is necessary to maintain a precedent on the system “presumption of husband’s paternity of child”. In this context, this article deals with the problem of the system “presumption of husband’s paternity of child” from the point of view of legal philosopy and methodology. At first, this article analyzes the basis of recognition of the system “presumption of husband’s paternity of child” from the perspective of legal philosophy (Ⅱ), and critically examines whether the attitude of civil aw is still valid today (Ⅲ). On this basis, this article criticizes the attitude of the civil law, which strictly adheres to the system “presumption of husband’s paternity of child” in terms of legal policy. However, it is pointed out that there is a problem in recognizing an exception to the system “presumption of husband’s paternity of child” by interpreting Paragraph 1 of Article 844 of the Civil Code (Ⅳ). According to this article, this is not legal interpretation but lawmaking: contra legem interpretation (contra legem Rechtsfortbildung). On this basis, this article argues that the Supreme Court is not allowed to recognize exceptions directly to the system “presumption of husband’s paternity of child” (Ⅴ). It claims to be a matter that the Constitutional Court needs to deal with.