제3자 정자제공형 인공수정에 대한 동의가 갖는 친자법상 의미 (The Meaning of Consent for AID under Family Law)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 35권 / 3호 / 105 ~ 130페이지
· 저자명 : 박신욱

초록

Unlike the mother-child relationship, the father-son/daughter relationship is not attributed to the fact of childbirth. Therefore, not only the sincerity of blood relationship, but also the welfare of the son/daughter, the intention of the parents and the relationship between them, etc., should be taken into consideration to attribute the father-son/ daughter relationship. Moreover, the change of thinking (e.g. Same-sex marriage) and the development of science-technology suggest the possibility of the formation of a new family relationship, and the factors to be considered for the father-son/daughter relationship are bound to increase accordingly. In addition, these factors need to be considered not only for the attribution of the father-son/daughter relationship, but also for resolving the already vested father-son/daughter relationship. If the interpretation of our law makes these changes and developments unacceptable, amendments to the law should also be considered. However, if any problem has to be resolved at this point without such amendments, interpretation of the law and the parties’ intentions must be made within the current legal system, and these factors for considerations can only have an effect within the system. In particular, since the judgment of the Supreme Court is not only a conclusion of the case, but also an important standard in interpreting the law and the parties’ intentions in similar situations, a serious approach to whether or not it contradicts the existing judgment is required. Basically, through the 2019 ruling, we can sympathize with how the Supreme Court of Korea has gone through the process of in-depth analysis of the case and led to the result. In particular, it is possible to agree on the need to secure the welfare of the son/daughter. However, in this paper, the question was raised as to whether this interpretation of the Supreme Court is possible within our legal system at this time, and the following conclusions were reached.
First, since the written consent of the father, which is carried out according to the current Bioethics And Safety Act, is consent to the embryo-generating medical institution, consent between the husband and wife must be secured for artificial insemination. To clarify this, it is necessary to legislate the consent in the form of notarization as in Article 152 of the Austrian Civil Code.
Second, the consent of the father is a form similar to the consent of adoption, and it is a kind of indication for establishing a father-son/ daughter relationship by a intention, and it can be seen as a contract for a third person based on Article 539 KBGB, in which the person who was born becomes a third person. Accordingly, the father bears a contractual obligation to nurture the child as well as the biological child.
Third, since Article 844 (1) KBGB presumes that a child conceived by a wife during marriage is the husband's child, the assumption is made even in the case of artificial insemination. However, the father's right to deny paternity cannot be given up as an exclusive right.
Fourth, even if the father’s right to deny paternity is exercised and the father’s paternity is denied, contractual responsibilities must be continuously borne, which may be subject to change of circumstances.
This method of interpretation is made within the system of our law, and I think that the welfare of the son/daughter that our Supreme Court was trying to secure can be guaranteed through this as well. However, as can be seen from the background of the introduction of Article 1600 (4) BGB, it is necessary to exclude the right to deny paternity to fathers who have consented to artificial insemination through the revision of the Korean Civil Code. This is because not only the custody of a son/ daughter born through artificial insemination, but also the status of inheritance can be secured.

영어초록

Unlike the mother-child relationship, the father-son/daughter relationship is not attributed to the fact of childbirth. Therefore, not only the sincerity of blood relationship, but also the welfare of the son/daughter, the intention of the parents and the relationship between them, etc., should be taken into consideration to attribute the father-son/ daughter relationship. Moreover, the change of thinking (e.g. Same-sex marriage) and the development of science-technology suggest the possibility of the formation of a new family relationship, and the factors to be considered for the father-son/daughter relationship are bound to increase accordingly. In addition, these factors need to be considered not only for the attribution of the father-son/daughter relationship, but also for resolving the already vested father-son/daughter relationship. If the interpretation of our law makes these changes and developments unacceptable, amendments to the law should also be considered. However, if any problem has to be resolved at this point without such amendments, interpretation of the law and the parties’ intentions must be made within the current legal system, and these factors for considerations can only have an effect within the system. In particular, since the judgment of the Supreme Court is not only a conclusion of the case, but also an important standard in interpreting the law and the parties’ intentions in similar situations, a serious approach to whether or not it contradicts the existing judgment is required. Basically, through the 2019 ruling, we can sympathize with how the Supreme Court of Korea has gone through the process of in-depth analysis of the case and led to the result. In particular, it is possible to agree on the need to secure the welfare of the son/daughter. However, in this paper, the question was raised as to whether this interpretation of the Supreme Court is possible within our legal system at this time, and the following conclusions were reached.
First, since the written consent of the father, which is carried out according to the current Bioethics And Safety Act, is consent to the embryo-generating medical institution, consent between the husband and wife must be secured for artificial insemination. To clarify this, it is necessary to legislate the consent in the form of notarization as in Article 152 of the Austrian Civil Code.
Second, the consent of the father is a form similar to the consent of adoption, and it is a kind of indication for establishing a father-son/ daughter relationship by a intention, and it can be seen as a contract for a third person based on Article 539 KBGB, in which the person who was born becomes a third person. Accordingly, the father bears a contractual obligation to nurture the child as well as the biological child.
Third, since Article 844 (1) KBGB presumes that a child conceived by a wife during marriage is the husband's child, the assumption is made even in the case of artificial insemination. However, the father's right to deny paternity cannot be given up as an exclusive right.
Fourth, even if the father’s right to deny paternity is exercised and the father’s paternity is denied, contractual responsibilities must be continuously borne, which may be subject to change of circumstances.
This method of interpretation is made within the system of our law, and I think that the welfare of the son/daughter that our Supreme Court was trying to secure can be guaranteed through this as well. However, as can be seen from the background of the introduction of Article 1600 (4) BGB, it is necessary to exclude the right to deny paternity to fathers who have consented to artificial insemination through the revision of the Korean Civil Code. This is because not only the custody of a son/ daughter born through artificial insemination, but also the status of inheritance can be secured.

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