혼외 부자관계에서 인지성립요건론의 재고 (Father-Child Born Out Of Wedlock, and Acknowledgement)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 21권 / 3호 / 89 ~ 108페이지
· 저자명 : 백승흠

초록

'A child born out of wedlock' means a child who was born while his/her father and mother is not being married.
Korean Civil Law(hereafter "Civil Law") Article 844 (Presumption as Husband's Child) prescribed the father-child relationship as follows ;(1) A child conceived by a wife during the marriage shall be presumed to be the child of the wife's husband.
(2) A child born after two hundred days from the day when the marriage was formed or born within three hundred days from the day when the matrimonial relation was terminated, shall be presumed to have been conceived during the marriage.
Article 844 has not applicate, however, to a child born out of wedlock. According to the legal attitude which made the child in wedlock superior to the child out of wedlock on the assumption that marriage, the legislature don't have to make any prescription on presumption as husband's child for a child out of wedlock.
Furthermore, Civil Law Article 855 (Affiliation) prescribed a child out of wedlock as follows ;(1) A child born out of wedlock may be affiliated by its natural father or mother. When the marriage of the parent becomes null and void, the child born between them shall be deemed to be a child born out of wedlock.
(2) A child born out of wedlock, when its father and mother marry, shall be deemed to be a child born during the marriage from the time of the marriage.


And cases and the majority of scholars have recognized a principle that a delivery makes mother-child relationship except an abandoned child and a missing child. Therefore a child born out of wedlock has not a father until a father acknowledged him/her.


Are these provisions adequate nowadays? Do they accord with the Best Interest of the Children Rule?Especially, we can easily confirm blood relationship through DNA testing, therefore the acknowledgement system in Civil Law has to be reviewed.

영어초록

'A child born out of wedlock' means a child who was born while his/her father and mother is not being married.
Korean Civil Law(hereafter "Civil Law") Article 844 (Presumption as Husband's Child) prescribed the father-child relationship as follows ;(1) A child conceived by a wife during the marriage shall be presumed to be the child of the wife's husband.
(2) A child born after two hundred days from the day when the marriage was formed or born within three hundred days from the day when the matrimonial relation was terminated, shall be presumed to have been conceived during the marriage.
Article 844 has not applicate, however, to a child born out of wedlock. According to the legal attitude which made the child in wedlock superior to the child out of wedlock on the assumption that marriage, the legislature don't have to make any prescription on presumption as husband's child for a child out of wedlock.
Furthermore, Civil Law Article 855 (Affiliation) prescribed a child out of wedlock as follows ;(1) A child born out of wedlock may be affiliated by its natural father or mother. When the marriage of the parent becomes null and void, the child born between them shall be deemed to be a child born out of wedlock.
(2) A child born out of wedlock, when its father and mother marry, shall be deemed to be a child born during the marriage from the time of the marriage.


And cases and the majority of scholars have recognized a principle that a delivery makes mother-child relationship except an abandoned child and a missing child. Therefore a child born out of wedlock has not a father until a father acknowledged him/her.


Are these provisions adequate nowadays? Do they accord with the Best Interest of the Children Rule?Especially, we can easily confirm blood relationship through DNA testing, therefore the acknowledgement system in Civil Law has to be reviewed.

참고자료

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