법률상 부 아닌 생부의 면접교섭권에 관한 유럽인권재판소의 판례
The Precedent of European Court of Human Rights on the Right of Contact of the Biological Father Who is not the Legal Father
윤진수(서울대학교)
39권 3호, 397~420쪽
초록
The European Court of Human Rights ruled in the case of Anayo v. Germany, that German law violated the European Convention on Human Rights by failing to guarantee contact rights to the biological father who is not legally recognized as father. The European Court of Human Rights reaffirmed this ruling in its decision on December 15, 2011, in the case of Schneider v. Germany. As a result of these rulings, German Civil Code was amended to recognize the contact right of the biological father. At the time of this ruling, German civil law stipulated that in order for a biological father to challenge the paternity between the legal father and the child, there must be no socio-familial relationship(sozio-familiäre Beziehung) between the child and the legal father. Furthermore, biological fathers who are unable to challenge the paternity are, in principle, not entitled to contact right with their children. The European Court of Human Rights ruled that the German Civil Code violated Article 8 of the European Convention on Human Rights (Right to respect for private and family life) by denying the biological father's right to contact without considering whether such contact would be in the children’s best interest. In accordance with this ruling, the German Civil Code was amended on July 4, 2013, to recognize contact right between the biological father and his children when such contact is in the best interests of the children. Meanwhile, on April 9, 2024, the German Federal Constitutional Court ruled that the provision of the German Civil Code prohibiting the biological father from challenging the paternity, when a social family relationship exists between the legal father and the child, is unconstitutional. However, as of July 2025, the amendment to the German Civil Code pursuant to the above unconstitutionality decision has not yet been implemented. The above precedent of the European Court of Human Rights and the subsequent development in Germany provide us with ample source for the deliberation.
Abstract
The European Court of Human Rights ruled in the case of Anayo v. Germany, that German law violated the European Convention on Human Rights by failing to guarantee contact rights to the biological father who is not legally recognized as father. The European Court of Human Rights reaffirmed this ruling in its decision on December 15, 2011, in the case of Schneider v. Germany. As a result of these rulings, German Civil Code was amended to recognize the contact right of the biological father. At the time of this ruling, German civil law stipulated that in order for a biological father to challenge the paternity between the legal father and the child, there must be no socio-familial relationship(sozio-familiäre Beziehung) between the child and the legal father. Furthermore, biological fathers who are unable to challenge the paternity are, in principle, not entitled to contact right with their children. The European Court of Human Rights ruled that the German Civil Code violated Article 8 of the European Convention on Human Rights (Right to respect for private and family life) by denying the biological father's right to contact without considering whether such contact would be in the children’s best interest. In accordance with this ruling, the German Civil Code was amended on July 4, 2013, to recognize contact right between the biological father and his children when such contact is in the best interests of the children. Meanwhile, on April 9, 2024, the German Federal Constitutional Court ruled that the provision of the German Civil Code prohibiting the biological father from challenging the paternity, when a social family relationship exists between the legal father and the child, is unconstitutional. However, as of July 2025, the amendment to the German Civil Code pursuant to the above unconstitutionality decision has not yet been implemented. The above precedent of the European Court of Human Rights and the subsequent development in Germany provide us with ample source for the deliberation.
- 발행기관:
- 한국가족법학회
- 분류:
- 법학