〈Case concerning whether a North Korean defector born in North Korea who obtained a judgment confirming the existence of a parent-child relationship with a father who died in North Korea may have the father's specific registration particulars in the family relations register recorded identically to the entries in the father's removed family register〉[Gong 2024Ha, 1110]

【Holding】

[1] Whether, with respect to matters that may have a significant effect under family law or inheritance law, an application for correction of the family relations register may be made only on the basis of a final judgment pursuant to Article 107 of the Act on Registration of Family Relations (affirmative)

[2] Where the father's date of birth and family origin (bon) are not recorded in the child's family relations register, whether recording them identically to the entries in the father's removed family register must be done on the basis of a final judgment pursuant to Article 107 of the Act on Registration of Family Relations (affirmative), and whether, in such a case, the fact that the child was born in wedlock must be separately established through the family relations register or the like (affirmative)

[3] Whether a child born during a marital relationship that was validly formed in the area north of the Military Demarcation Line becomes a child born out of wedlock merely because that marital relationship was not recorded in the family relations register (negative)

[4] The method of correcting the family relations register where a person, asserting that he or she is a child born during a marital relationship validly formed in the area north of the Military Demarcation Line, has obtained a final judgment confirming the existence of a parent-child relationship with the father

【Summary of Order】

[1] Article 104 of the Act on Registration of Family Relations (hereinafter the "Family Relations Registration Act") provides for applications for correction of the family relations register with the permission of the family court, and Article 107 provides for applications for correction of the family relations register on the basis of a final judgment. Since correction of the family relations register with the permission of the family court is permitted, in view of the simplicity of that procedure, where the matter to be corrected is minor, an application for correction of the family relations register with respect to matters that may have a significant effect under family law or inheritance law may be made only on the basis of a final judgment pursuant to Article 107 of the Family Relations Registration Act.

[2] Where the father's date of birth and family origin (bon) are not recorded in the child's family relations register, recording them identically to the entries in the father's removed family register is a matter that may have a significant effect under family law or inheritance law, and therefore this must be done on the basis of a final judgment pursuant to Article 107 of the Act on Registration of Family Relations (hereinafter the "Family Relations Registration Act"). A child born in wedlock may obtain a final judgment confirming the existence of a parent-child relationship and apply for correction of the register pursuant to Article 107 of the Family Relations Registration Act; however, since such a judgment does not determine in its disposition whether the parents were married, apart from the determination as to the existence of the parent-child relationship, the fact that the child was born in wedlock must be separately established through the family relations register or the like.

[3] A child born during a marital relationship that was validly formed in the area north of the Military Demarcation Line (hereinafter "North Korea") does not become a child born out of wedlock merely because that marital relationship was not recorded in the family relations register. The reasons are as follows.

(1) Article 19-2 of the North Korean Refugees Protection and Settlement Support Act provides for special cases where a North Korean defector who has created a family relations registration and who has a spouse in North Korea files for divorce against that spouse. In addition, the Act on Special Cases concerning Family Relationship, Inheritance, etc. between Residents in South and North Korea restricts the annulment as bigamy of a marriage where a person who married before the Armistice Agreement and had a spouse in the area south of the Military Demarcation Line (hereinafter "South Korea") remarried in North Korea, or deems the prior marriage to have been dissolved in certain cases (Article 6), and provides for special cases concerning the period within which a North Korean resident born as a child in wedlock may bring an action for confirmation of the existence of a parent-child relationship against a parent who is a South Korean resident (Article 8).

(2) In this way, the relevant statutes regulate the resulting legal relationships from the standpoint that the validity of a marital relationship formed in North Korea may be recognized and that a child born during such a marital relationship may also be a child born in wedlock. This reflects the intent, taking into account the special nature of the various problems in the status relationships of South and North Korean residents arising from inter-Korean relations, not to deny the validity of a status relationship already validly formed in North Korea solely on the ground that there is no record under the Act on Registration of Family Relations.

[4] Where a person, asserting that he or she is a child born during a marital relationship validly formed in the area north of the Military Demarcation Line (hereinafter "North Korea"), has obtained a final judgment confirming the existence of a parent-child relationship with the father and applies for correction of the family relations register, it must be held that, even if the parents' marital relationship is not recorded in the family relations register or the like, the person may have the family relations register corrected by making a prima facie showing of whether the parents' marital relationship was formed in North Korea or of the related status relationships, obtaining the permission of the family court pursuant to Article 104 of the Act on Registration of Family Relations, and applying for correction. This is because, considering that a marital relationship validly formed in North Korea is difficult to record in the family relations register, that the Family Litigation Act and other statutes provide no direct means of litigation by which one may obtain confirmation that a marital relationship validly subsists or that a specific person is a child born during that marriage, and the purport of the relevant statutes examined above, it is necessary to afford, even in such a case, the legal possibility of correcting the family relations register with the permission of the family court.

【Referenced Statutes】

[1] Article 107 of the Act on Registration of Family Relations [2] Article 107 of the Act on Registration of Family Relations [3] Article 19-2 of the North Korean Refugees Protection and Settlement Support Act; Articles 6 and 8 of the Act on Special Cases concerning Family Relationship, Inheritance, etc. between Residents in South and North Korea [4] Articles 104 and 107 of the Act on Registration of Family Relations

【Referenced Precedents】

[1] Supreme Court Order 93Seu14, 15, 16, May 22, 1993 (Gong 1993Sang, 1402)

(Source: Supreme Court Order 2024Seu536, June 13, 2024 [Correction of Register] > Comprehensive Legal Information System, Precedents)