A Study on the Requirements to File the Suit Demanding Declaration of (Non-) Existence of Paternity

Abstract

This paper studies the requirements of the action demanding declaration of (non-) existence of paternity which are stipulated in Article 865 of Korean Civil Code (hereinafter “KCC”). The Korean Supreme Court recently rendered an en banc decision, decision no. 2015me8351, dated June 18, 2020, where the Court overruled its precedent that had stood valid for almost 40 years. The precedent allowed any relative of the parent or child to file such lawsuit, as long as the relative fell within the scope of relatives stipulated in Article 777 of the KCC. Under the new en banc decision, the plaintiff of the action demanding declaration of (non-) existence of paternity has to show that he/she has legal interest over the declaration. An action filed by a plaintiff who only has factual, or economic interest will be dismissed. This new legal rule applies when the plaintiff is a relative of the parent or child. As such, the en banc decision at issue limits the scope of the action in terms of the standing. This author believes that the en banc decision will better protect the interest of parent and child, by discouraging third party’s intervention in the parent-child relationship.