CONTENTS
- 1. Non-Existence of a Parent-Child Relationship | Lawsuit for Confirmation of Non-Existence of a Parent-Child Relationship
- - When Necessary
- 2. Non-Existence of a Parent-Child Relationship | Requirements for the Lawsuit
- - Plaintiff
- - Defendant
- - Period for Filing Suit
- 3. Non-Existence of a Parent-Child Relationship | Evidence and the Flow of the Trial
- - Supporting Evidence
- - Drafting the Complaint
- - The Flow of the Trial
- 4. Non-Existence of a Parent-Child Relationship | Effects of the Judgment
- - How to Correct the Register
- 5. Non-Existence of a Parent-Child Relationship | Checklist
- - Family Law Attorney Support System
1. Non-Existence of a Parent-Child Relationship | Lawsuit for Confirmation of Non-Existence of a Parent-Child Relationship
An action to confirm the non-existence of a biological parent-child relationship is, where the matter cannot be resolved through presumption of paternity, acknowledgment, or an action to deny paternity under the Civil Act, a lawsuit brought to contest the parent-child relationship through a supplementary procedure (Article 865 of the Civil Act).
It is one type of action to confirm the existence or non-existence of a biological parent-child relationship, the other type being an action to confirm the existence of a biological parent-child relationship.
When Necessary
An action to confirm the non-existence of a parent-child relationship is generally needed when a person is registered as a biological child even though no biological parent-child relationship exists, such as in the following cases.
(a case of arbitrarily registering a child born out of wedlock)
▷ A child switched during delivery, or an error in the birth report
▷ An error in family relationship registration arising from a hospital mistake, mistaken adoption, or similar cause
▷ An intentional false birth report
(a case of false registration for purposes such as the wrongful receipt of benefits through a birth report)
This action is often used in particular when correction of the family relationship register is needed.
2. Non-Existence of a Parent-Child Relationship | Requirements for the Lawsuit
To confirm the non-existence of a parent-child relationship, a party with standing to sue may file the action with the court having jurisdiction over the defendant's ordinary forum.
Plaintiff
The following persons may generally file a lawsuit for confirmation of non-existence of a parent-child relationship.
Standing | Description |
Father, mother, child | Parties concerned under Articles 845 and 846 of the Civil Act, among others |
Lineal descendant of the child, legal representative | Successor of a minor or a deceased child |
Adult guardian, executor of a will, and others | Other interested parties as determined by the court |
In addition, a person who has a legal interest such as inheritance or support may also file the lawsuit.
A mere relative, however, is not recognized unconditionally, and the person must be able to prove a legal interest.
Defendant
The defendants in an action for confirmation of the non-existence of a parent-child relationship are the father, the mother, and the child related to the case.
However, if a party has died, the action may be filed against the prosecutor (Article 865 of the Civil Act).
Period for Filing Suit
In principle, there is no fixed period for filing the action.
However, if a party has died, the action must be filed within two years from the date the death becomes known.
3. Non-Existence of a Parent-Child Relationship | Evidence and the Flow of the Trial
In confirming the absence of a parent-child relationship, the central question for the court is whether a substantive parent-child relationship exists.
Supporting Evidence
To prove that no substantive parent-child relationship exists, the following evidence may be needed.
Type of evidence | Examples |
Genetic test results | DNA analysis by a court-designated appraisal institution |
Hospital birth records | Medical records from the delivery hospital, birth report, and similar documents |
Other circumstantial evidence | Absence of any caregiving, absence of contact between family members, statements from acquaintances, and similar items |
Drafting the Complaint
To pursue a lawsuit for confirmation of non-existence of a parent-child relationship, a complaint must be prepared and filed with the court that has jurisdiction over the defendant's general venue.
The complaint should include the following.
∙ The defendant's name, resident registration number, registered domicile, and address
∙ The claim for relief (a declaration that the parent-child relationship does not exist)
∙ The grounds for the claim (stated in detail)
∙ Attachment of the family relationship certificate, basic certificate, written confirmation of facts, and certificate of seal impression
∙ Attachment of any other supporting documents
The Flow of the Trial
An action to confirm the non-existence of a parent-child relationship follows civil procedure and proceeds through the following steps.
: The plaintiff seeking resolution of the dispute prepares a complaint and submits it to the court
② Review of the complaint (court)
: If the complaint contains a defect, a recommendation or an order to correct it is issued
③ Service of a copy of the complaint (court > defendant)
④ Submission of an answer (defendant)
: If the defendant denies the plaintiff's claim, an answer is submitted within 30 days of service
(if no answer is submitted, judgment is rendered directly)
⑤ Service of the answer (court > plaintiff)
⑥ Date for organizing the issues
: At the first pleading date, both parties meet the judge early to identify the issues of the case
⑦ Pleading preparation procedure (court)
: Pleading preparation by briefs and the pleading preparation date
⑧ Pleading date
: Once the pleading preparation procedure is completed, a pleading date is set immediately
⑨ Date for concentrated examination of evidence
: After the parties' arguments and evidence are organized, witness examination and party examination are conducted
⑩ Judgment
4. Non-Existence of a Parent-Child Relationship | Effects of the Judgment
If, in an action to confirm the non-existence of a biological parent-child relationship, the court renders a final judgment that the parent-child relationship does not exist, the child fully loses the legal parent-child relationship with the parent.
This affects not only the correction of the family relationship register but also one's status and property rights generally.
Category | Effect |
Correction of the family relationship register | The child is removed from the family relationship with the parent and legally becomes a third party |
Loss of the right of inheritance | Because the child is not a biological child, the right of inheritance with respect to the parent or that parent's family is extinguished |
Extinguishment of the duty of support | The support relationship also ends, so the parties no longer owe each other a duty of support |
Extinguishment of parental authority and custody | In the case of a minor, the parental authority and right of custody previously exercised are terminated |
How to Correct the Register
Once a judgment confirming the non-existence of a parent-child relationship becomes final, the relationship with the parents must be corrected in the child's family relationship register.
This correction is carried out on the basis of the court's judgment, and the relevant application proceeds according to the following procedure.
Place of Application
※ Overseas Koreans may also apply at the Family Relations Registration Office for Overseas Koreans
Items to Be Completed on the Application
∙ The date of application
∙ The applicant's personal information (date of birth, resident registration number, etc.)
∙ The personal information of the subject of the application and the capacity of the person reporting
Required Attachments
∙ The applicant's identification document
5. Non-Existence of a Parent-Child Relationship | Checklist
To file a suit for confirmation of non-existence of a parent-child relationship, you must thoroughly prepare the documents needed to prove the facts, and you should approach the matter with the subsequent procedure for correcting the family relation register in mind.
Securing genetic test results and documentary evidence of the family relationship is particularly central.
Preparation Item | Details |
Drafting the Complaint | State in specific terms the circumstances of the non-existence of the parent-child relationship, the purport of the claim, and the cause of action |
Confirming the Competent Court | Determine the competent family court based on the defendant's domicile |
Securing Supporting Evidence | Documents that can prove the non-existence of the relationship, such as a family relation certificate, basic certificate, genetic test results, fact confirmation statement, and written statement |
Statements or Fact Confirmation Statements from Related Persons | Secure written statements and fact confirmation statements from third parties (for example, a caregiver, relatives, and others) |
Preparing for Post-Judgment Procedures | After securing the final judgment and the certificate of finality, prepare to apply for correction of the family relation register |
Application for Correction of the Family Relation Register | Prepare the application for correction and submit it to the competent administrative agency |
Family Law Attorney Support System
This law firm includes a number of attorneys specializing in family matters who are registered with the Korean Bar Association, as well as attorneys with an average of more than 10 years of experience.
The firm can provide precise and comprehensive legal assistance throughout the entire process, from proving the non-existence of a biological parent-child relationship to filing the action, the confirmation of the judgment, and the application for correction of the family relationship register.
If handling the entire procedure alone is difficult, you may proceed more accurately and promptly with the assistance of a family law attorney.
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