1. Summary
Action demanding affiliation is primarily filed to establish a legal father-child relationship between a child born out of wedlock and their biological father in South Korea.
According to Supreme Court precedents in Korea, legal paternity with the biological father can only be established through affiliation, making it impossible to rectify a father-child relationship solely through confirmation of existence of parent-child relationship.
In contrast, for a mother-child relationship, even in the case of children born out of wedlock, legal recognition can be achieved through an action demanding confirmation of existence of parent-child relationship, without requiring the mother to file for affiliation. As a result, affiliation claims by biological mothers are rarely utilized.
2. Definition and Purpose of an Action Demanding Affiliation
An “action demanding affiliation” is a lawsuit filed to establish or confirm a legal parent-child relationship, primarily between a child and their biological father.
In such lawsuits, the biological father cannot refuse the claim for affiliation if there is biological evidence of paternity.
Once a final judgment is rendered in favor of affiliation, the legal parent-child relationship is established. Consequently, the child can be registered in the family registry of the biological father or mother and may inherit the estate of the deceased parent upon their death.
3. What is Affiliation in Civil Law?
In Korean family law, “affiliation” refers to the acknowledgment by a biological father or mother that a child born out of wedlock is their own. This acknowledgment creates a legal parent-child relationship.
In other words, children born out of wedlock do not automatically have a legal father or mother unless the biological parent formally recognizes them by filing an acknowledgment as stipulated under family law.
4. Persons Who Can File the Lawsuit (Plaintiffs)
An action demanding affiliation can be filed by:
- The child themselves (the party concerned),
- Their direct descendants (e.g., the child's children), or
- Their legal representatives (Article 863 of the Civil Act).
5. Persons Subject to the Lawsuit (Defendants)
This lawsuit is typically filed against the biological father. However, in cases where the mother-child relationship is unclear—such as abandoned children (foundlings)—the lawsuit may also be filed against the mother.
If the alleged father or mother has passed away, the lawsuit must be filed against a public prosecutor.
6. Statute of Limitations for Filing an Action Demanding Affiliation
There is no statutory time limit for filing an action demanding affiliation against living parents. However, if the defendant (biological father or mother) has passed away, this lawsuit must be filed within two years from when their death was known, and it must be filed against a public prosecutor.
7. Reasons to Expedite an Action Demanding Affiliation
Affiliation takes effect retroactively from the time of the child’s birth under Article 860 of the Civil Act but does not affect rights already acquired by third parties. Therefore, it is crucial to file an action demanding affiliation promptly before other siblings dispose of inherited assets to third parties during inheritance proceedings.
However, in cases where an action demanding confirmation of existence of paternity is filed against the biological mother instead of the father, Supreme Court precedents allow not only claims for compensation from co-heirs but also challenges to assets already disposed of by third parties. Thus, professional consultation with an attorney is essential to assess your specific situation.
Additionally, it is possible to claim monthly child support payments from a biological father who has failed to fulfill their parental responsibilities, as well as retroactive claims for unpaid child support from the past.
8. Lawsuits and Genetic Testing
The Korean Family Court may order appropriate tests such as blood type or genetic testing if necessary (Article 29 of the Family Litigation Act).
If genetic testing becomes difficult due to circumstances such as the death of one or both parents:
① The court may order genetic testing with half-siblings or other co-heirs to confirm paternity; or
② Indirect evidence such as witness testimony, photographs, and proof of a romantic relationship between parents may be comprehensively considered to establish paternity.
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