)A Revisit to the Non-Exception Theory on the Presumption of Paternity on Supreme Court Cases no. 2016Mu2510 and 2021Mu13293

Abstract

According to the Korean Civil Act, the father of a child born from a matrimonial relationship shall be presumed to be the husband of the mother of the child. Once such presumption is made, it can be rebutted only by the denial of paternity claim, which can be raised by each spouse within 2 years after he or she finds out the falsity of the presumption. Presumption of paternity has been recognized in Korea as well as in many countries, as father-child relationship is hard to be proven by externals, unlike mother-child relationship. However, as Korean Civil Act had prescribed the filing period for the denial of paternity claim too short(within 1 year after the father becomes aware of the birth of the child), the Supreme Court contrived so-called ‘exception by externals theory’, according to which the presumption is not made when it is evident from externals that the married couple did not live together. Now with new biological technology and DNA tests, it has been argued whether there is a need to set up different criterion to such exception theory or to expand more exceptions. Still, Korean Supreme Court recently adjudicated that presumption of paternity should be maintained even if such presumption was found to be false after DNA tests, and reiterated the exception by externals theory. This article reviews the origin and relationship between the presumption of paternity clause and the denial of presumption clause, and suggests the exception theory should be overturned since the filing period for the denial of presumption has been adequately extended after the constitutional court’s decision, thus leaving no need to adopt exception theories any more. In order to protect the proper interests of the child and the biological father, however, it is imperative that the current Korean Civil Act should be revised to allow locus standi to the child and to the biological father as soon as possible.