親生推定 法理에 관한 小考

A Study on the Legal Principles of Presumption of Paternity

Recently, formations of family relations in Korean society have been diversified in accordance with the changes being taken place in society. Especially, the development of artificial reproductive technology has enabled infertile couples to give births. Under these circumstances, the civil law on presumption of paternity is questioned as to whether it conforms with the diverse forms of paternity. Moreover, Section 844 of the Civil Code on the presumption of paternity has been a subject of debate since its enactment, which primarily focuses on how to resolve the inconsistencies between legal paternity and true kinship. As part of the efforts to resolve these issues, the former Civil Code, Section 844 (2), relating to those who are born within 300 days after the termination of marital relations, has been concluded as infringement of constitution due to the violation of maternal rights and basic rights of marriage and family life. As a result, the revisions have taken place to relieve the action of denial of paternity. In particular, based on the recent ruling by the Supreme Court for the first time that a child born from artificial insemination using a sperm of a third party with the consent of husband during the marriage, is reasonably assumed to the child of husband under the provisions of the presumption on paternity (Civil Code, Section 844 (1)). This has again triggered the legal interest. In addition, as a review of existing cases regarding the exception of the presumption on paternity, the Supreme Court judged that if the wife got pregnant and gave birth during the marriage, the child is assumed to be the husband s child even if the genetic test reveals that there is no kinship with the husband. The ruling has once again triggered legal interest in the law related to the determination of parental relations and presumption of paternity through a public plea on the verification of the absence of paternity relations in the Supreme Court on May 22, 2019. In this paper, the ruling of the Supreme Court will be studied as well as the review of issues related to the interpretations on the restriction of the existing law on presumption of paternity.