친자관계와 독립된 혈연검사를 위한 법적 절차 도입의 필요성 ―독일 민법 §1598a 신설에 관한 논의를 중심으로―

Abstract

In 2008, the Act to clarify the paternity without effect on legal parentage which is introduced as BGB §1598a took effect. Thus, it is now possible that the genetic parentage of a child can be clarified without contestation of legal paternity in paternity procedure. Such an amendment is led by the decision of the Federal Constitutional Court in 2007, ruling that every legal father must be given the legal possibility of DNA tests to make sure of his genetic paternity even if the child (or the mother if he/she is a minor) refuses to take it, otherwise the paternity law of Germany would be incompatible with Article 6.2 sentence 1 of the GG, that is, the German Basic Law. The background of this decision is the conflict between interests both of which is protected under Article 6 GG. On the one hand, this article assures the principle that anyone must have right to know his/her natural parentage and that legal parentage should be allocated in accord with this as far as possible. However, on the other hand, the legislator is not under a duty to make legal recognition of parentage always dependent on an examination of the parentage of the child in the individual case, for with regard to the protection of family social relationships under Article 6.1 of the Basic Law and the protection of privacy under Article 2.1 of the Basic Law, it is sufficient to conclude what the parentage of a child is from particular facts and circumstances and social situations and to allocate the legal positions of parents on the basis of this presumption, if this as a general rule means that natural and legal parenthood coincide {see BVerfGE 79, 256 (267)}. So not only these statutory provisions on presumption but also the consequence of these, that is, the split of legal and natural paternity in the individual case is constitutionally unobjectionable. To solve this conflict of interests protected by GG, BVerG has supposed to introduce the procedure on genetic paternity without any legal effect since 1960's. But it always has been faced with criticism by not only literature but also legislator! Although the legislator hope that this newly introduced §1598a will be solution by compromise for this long lasting split in opinion, there comes not a few literatures that assess this article fall short of one’s expectations. This situation in Germany is full of suggestion for the Korean parentage law, because the Decision of the Constitutional Court of Korea has also admitted the same conflict of constitutionally protected interests as described in that of Germany. So it seems problematic the current law in Korea grant no tool for clarifying genetic paternity without effect on legal parentage.