생부의 친생부인권과 임시출생신고에 관한 입법론

Abstract

In this article, the author proposes legislation that would recognize the biological father’s right to deny paternity for a child born within wedlock, and allow the biological father to seek a provisional birth registration for such a child. The main points of the proposed legislation can be summarized as follows:
 On the biological father’s rights to deny paternity:
 1. Ⓐ Within 2 years from the date of the child’s birth, or Ⓑ within 1 year from the date the plaintiff discovers that he is the biological father, provided there is no social parenthood between the legal father and the child, and if the adult child consents to the denial themselves, the biological father may file for the denial of paternity against the legal father and the child/the mother with parental authority.
 2. Although the above requirements are met, the court may dismiss the biological father’s request for denial of paternity if such denial significantly harms or is likely to harm the welfare of the child.
 3. Any person who files for denial of paternity while aware that he is not the biological father will be subject to criminal punishment.
 On the provisional birth registration by biological father of the child:
 1. The biological father who has already filed for denial of paternity may apply for a provisional birth registration listing himself as the father of the registered child, by attaching test results conducted through scientific methods proving that he is the biological father.
 2. A provisional birth registration has the same effect as a formal one, except for matters regarding the child's legal father. Even if a provisional birth registration is made listing himself as the father of the registered child, the child’s legal father remains the mother’s husband until the court’s judgment denying the presumed paternity of the husband, and confirming the biological father's acknowledgment of his paternity is finalized.
 3. Upon finalization of the judgment in the lawsuit filed by the biological father for denying paternity, or termination of the legal proceedings for other reasons, the legal father and mother responsible for the birth registration, and the biological father who applied for the provisional birth registration are obligated to correct the provisional birth registration in accordance with the final judgment or parental law.