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Establishment of mother-child relationship and Coverage of Article 1014 of the Civil Code- A Critical Review on Supreme Court Decision 2018Da1049 Decided June 19, 2018 -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2019, 7(1), pp.101-120
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

KIM SANG HUN 1

1광주지방법원 국선전담변호사

Candidate

ABSTRACT

Notably, the Supreme Court has recently decided that Restrictions on retrospective effect of Affiliation that proviso to Article 1014 of the Civil Code states don't apply to the mother-child relationship because Affiliation is not necessary in it, therefore, based on Article 1014 of the Civil Act, the child may deny the effect of the division or disposal of inherited property by another co-inheritors of the mother through Supreme Court Decision 2018Da1049 Decided June 19, 2018 (hereinafter referred as ‘the Judgment’). It also explained that it is the same as the above conclusion even after another co-inheritors had already disposed of the inherited property, even if the mother-child relationship had been clarified by judgment on Confirming the existence of legal parentage. However, there are several questions about the Judgment. The Judgment evaluates Article 1014 of the Civil Act and Article 860 of the Civil Code concerning the effect and restrictions of Affiliation in conjunction. However, it is necessary to scrutinize the purpose of legislation stipulating the 'determination of the trial' in Article 1014 of the Civil Code and in particular, Article 1014 of the Civil Code also applies to 'other dispositions' as well as the division, so it is important to consider the safety of transactions including third parties. Nevertheless, the Judgment decided that "the determination of the trial" and Affiliation are the same concerning the mother-child relationship without legal principles, so I'm sorry that it could not look at Article 1014 of the Civil Code from a point of view different from Article 860 of the Civil Act. In addition, establishment of mother-child relationship of modern society is not as clear as that of father-child relationship. So ruling that "establishment of mother-child relationship had been clarified through trial, but Article 1014 of the Civil Act did not apply to it" is a passive interpretation of lowering the utilization of Article 1014 of the Civil Code and approaching the field of parenthood from a somewhat conservative perspective. Therefore, it is reasonable to claim for payment without distinction between mother-child relationship and father-child relationship, unless there is cause of invalidation or cancellation of division or other disposal.

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