ScholarWorks@숙명여자대학교

초록

The Korean Family Law has two structures: the paternity relationship based on blood ties and the parentage relationship based on the will of the person concerned. The former, “Patient relationship,” presupposes that a child is conceived and given birth through the parents’ natural sexual relationship, so, in principle, there is a biological blood relationship between the parent and the child born. First, although there is no explicit provision in our Civil Code regarding the establishment of a mother and child relationship, the Roman law that recognizes the mother as mother (mater semper certa est, quem nuptias demonstrant) has been generally recognized in our civil law. Due to the recent development of assisted reproductive technology, there is a question as to whether the general principle of forming a mother-child relationship under the civil law can be applied as it is, especially in the case of surrogacy. On the other hand, the paternity relationship is difficult to establish clearly, unlike the mother-child relationship, so the establishment of the relationship is presumed through a separate requirement. is changing the structure of However, the Supreme Court recently made a ruling that recognizes (or excludes the denial of paternity) the application of paternity presumption by 'father's consent' even when it is clearly found that there is no blood relation in relation to the estimating of paternity for a child by assisted reproduction. In establishing a relationship, the 'consent' of the parties has come to have an important meaning. According to the interpretation theory, 'blood ties' is an important factor in the establishment of a paternity relationship, but it is a result of a normative evaluation (fact) that a child is born from a marriage relationship rather than an individual or specific examination of 'true blood ties'. It is causing a kind of systematic confusion with respect to the traditional paternity law's quasi-specific composition of paternity relations based on blood relations - the formation of paternity relations by doctors. As such, it is a time when more essential considerations are needed in terms of systematic synthesis with the current legal system as to the legislative theory of the feasibility of introducing pseudoism in estimating paternity or forming paternity relationships. Based on the awareness of the above issues, this article aims to review the contents of our current legal system and the current discussion situation by type. In previous studies, specific discussions exist for individual issues, but studies that summarize the overall discussion are lacking. Therefore, in this paper, I classify the types of assisted reproduction, review the discussion on behavior regulation and the establishment of paternity according to each type, and examine implications that can be helpful for Korean civil law in the future.

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