부자관계의 결정기준: 혼인과 혈연

A child born after two hundred days from the day when the marriage was formed or born within three hundred days from the day when the matrimonial relation was terminated, shall be presumed to be the child of the wife’s husband(Korean Civil Act Article 844). However, the Supreme Court has declared that the presumption is excluded if there are apparent circumstances that the wife is not able to conceive her husband’s child(so called ‘appearance theory’). Such a practice, that is to acknowledge the exception of presumption, contradicts the concept of paternity presumption and makes it impossible to determine the father of the child at the time of birth, so it should be renounced. On the other hand, the types and the conditions of lawsuits for the rebut of paternity presumption are too restrictive to ensure the constitutional rights of children as well as biological fathers to form the legal family with their biological one according to the current practice. Therefore, it is necessary to open a gate for birth-fathers and children to overturn the paternity presumption by the action demanding confirmation of denial or existence of paternity.