1. Definition
Confirmation of non-existence of parent-child relationship is a lawsuit requesting the court to confirm the absence of a parent-child relationship between the parties through litigation.
Paternity suits, including confirmation of non-existence of parent-child relationship, can significantly impact familial relationships and inheritance by adding, deleting, or modifying legally registered family relationships if granted.
Therefore, courts scrutinize the requirements rigorously, necessitating careful consideration.
2. Relationship Between Denial of Paternity and Confirmation of Non-existence of Parent-Child Relationship
The purpose of denial of paternity and confirmation of non-existence of parent-child relationship is identical: to correct an incorrect parent-child relationship.
However, Korean civil law stipulates that the relationship between a child under presumption of paternity and the father can only be dissolved through “denial of paternity", making it impossible to resolve through confirmation of non-existence of parent-child relationship. The Korean Supreme Court reaffirmed this in 2016 again.
Specifically:
① For an incorrect mother-child relationship: Rectified through confirmation of non-existence of parent-child relationship
② For an incorrect father-child relationship: Rectified through denial of paternity
This classification, which may seem insignificant, is crucial because unlike the confirmation of non-existence of parent-child relationship, which has no statute of limitations, the action of denial of paternity becomes impossible to file two years after learning that the child is not a biological child.
Once this period passes, it becomes virtually impossible to correct the erroneous parent-child relationship in Korea.
3. Persons Who Can File the Lawsuit (Plaintiffs)
① Anyone with a direct interest in obtaining certain rights or being relieved of obligations through the litigation can file an action of confirmation of non-existence of parent-child relationship in Korea.
② An interested party in this context refers to someone whose rights or obligations regarding inheritance, support, or legal status would be concretely affected by a final judgment confirming the existence or non-existence of a parent-child relationship between other parties (Supreme Court en banc Decision 2015므0000, Decided June 18, 2020 [Confirmation of Existence/Non-existence of Parent-Child Relationship]).
4. Persons Subject to the Lawsuit (Defendants)
① When a party to the parent-child relationship files the lawsuit, the other party becomes the defendant.
② When a third party files the lawsuit, both parties to the parent-child relationship become defendants.
③ If one party has died, the surviving party becomes the defendant. If the person who would have been the defendant has died, the lawsuit proceeds with the public prosecutor as the defendant (refer to Article 28 and Article 24 of the Family Litigation Act).
5. Other Cases Requiring Litigation to Correct Parent-Child Relationships
① When registered as a biological child due to affiliation notification
Even if not a biological child, if registered as such due to an affiliation notification, the parent-child relationship must be corrected through an 'action of objection to affiliation' or 'action for nullification of affiliation' in South Korea.
② In case of adopted children
To deny a parent-child relationship formed through adoption, an 'action for nullification or cancellation of adoption' must be pursued.
6. Period for Filing an Action of Confirmation of Non-existence of Parent-Child Relationship (Statute of Limitations)
There is no statute of limitations for an action of confirmation of non-existence of parent-child relationship. However, if one party has died, the lawsuit can be filed against the public prosecutor, in which case a two-year statute of limitations applies.
Nevertheless, depending on the client's situation, it may be possible to file a lawsuit without a statute of limitations even if one party has died, making consultation with an attorney essential.
7. What If the Defendant Refuses Genetic Testing?
Genetic testing may be necessary to confirm the non-existence of parent-child relationship.
However, if relations with the defendant have soured, or if inheritance and other interests are at stake depending on the judgment, you might worry that the defendant won't cooperate with genetic testing.
In anticipation of such situations, you can apply to the court for an order compelling genetic testing. If the defendant refuses to comply with the order, they may be subject to a fine of up to 10 million won (approximately $7,700 USD) and detention for up to 30 days.
Moreover, the defendant's unjustified refusal to undergo genetic testing can itself serve as strong evidence for winning the case.
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