출생연월일 정정에 확정판결이 필요한지 여부 - 대법원 2012. 4. 13. 자 2011스160 결정 -

A child born within the subsistence of a marriage is presumed to be the child of the husband(Korean Civil Code Section 844 [The presumption of legitimacy]). The Family Court's final judgment on paternity suit is required in order that the child presumed to be legitimate may be legally recognized as an illegitimate child. To avoid the presumption of legitimacy, a child's mother occasionally registers birth with false birth date. Therefore there have been practices in family register correction as follows. If the correction of birth date reveals the presumption of legitimacy, The Family Court doesn't permit the correction of birth date without a final judgment on paternity suit. But the Supreme Court recently decided that the correction of an illegitimate child's birth date could be permitted without a final judgment on paternity suit. I think the Supreme Court's recent decision is right, in that birth date must be corrected to correspond to fact regardless of the presumption of legitimacy. However the Supreme Court's recent decision made errors as follows. The original trial had decided that the presumption of legitimacy could be changed not by a court's permission of the correction of birth date but by a final judgment on paternity suit. The Supreme Court misunderstood that to correct birth date the original trial had required a final judgment on the correction of birth date, and deduced a conclusion that a final judgment on the correction of birth date was not required to correct birth date, from the false premise that the correction of birth date didn't affect the presumption of legitimacy.