The issues from 1950 to the present day when the Civil Law on Presumption of Birth and denial of paternity was established are summarized. First, I think that the most valid theory before the decision of constitution inconsistency was made in 2015 was to adhere to the position of unlimited theory, but reflecting the outward theory could be harmonized appropriately in the modern society. However, in spite of the strengths and weaknesses of each theory, there was a limitation in that it was not able to keep up with the rapid social change in that it persisted in only one theory. I know that it is not easy to change existing precedents abruptly, but rather than biasing to one theory, I think that a realistic trial that fits the situation should be made to make use of the purpose of the presumption and to make the most suitable judgment for children, mothers, ex-husbands, and fathers.
Second, when looking at the issues of the Constitutional Court in 2015, I think that the decision to nonconformity is a legitimate judgment. Because today's divorce and remarriage have increased significantly, the period of prohibition of remarriage for women has been deleted by the Civil Law amendment in 2005, and the period of divorce consideration and adjustment preemptiveism have been introduced. As a result, the likelihood of having a birth father who is not the woman's ex-husband and giving birth within 300 days from the end of the marriage has increased significantly compared to the past.
However, the development of medicine and changes in marital family life is a phenomenon affecting not only Korea but also the world's paternity laws. Many countries have already recognized this problem and have undergone major revisions since the 1970s. It was regrettable that the problem was raised too late. In response to the changing situation, I think that revisions appropriate for Korea should be made through legislation in various countries. There is also a way to choose birth-timeism, for example in Germany.
In addition, I felt that the biggest limitation was the narrow perspective of not accepting the changes in various family types and only considering the normal family form when they were impregnated during marriage, and the focus on the welfare of children simply to eliminate blank of father.
Third, the Civil Code was revised in 2017 after the 2015 constitution inconsistency was decided. I think it is good to have improved the irrationality by reflecting the changes in the social era. However, it is very unfortunate that it did not take into account the incongruity of the provisions of the Family Relations Registration Act (the problem of delaying the notification of birth), and those who do not fall within the presumption of the birth child (incongruity with the existing legal system).
As many scholars are discussing a lot of problems and improvements in this regard, I hope that more people's realistic opinions will be reflected in the next revision. In addition, I think that the method of converting korean poeticism, which is the basis of pro-birth presumption, to birth-timeism would be one of the improvements. Or, if there is a problem with only 'those born within 300 days after the end of the marriage', and if you want to continue the purpose of the existing estimating birth,'those born within 300 days after the end of the marriage' is not an ex-husband, but rather a child of a biological father, taking into account the increased social background. I think an alternative could be to be able to make a birth-born wife through a petition to confirm the existence of a paternity relationship only if the following conditions are met.
① The result of a genetic test to confirm that the ex-husband is not the child, ② the ex-husband does not intend to raise the child, and ③ the biological father has the intention of raising and recognizing the child. However, if any one of ①~③ does not meet the conditions, it will be possible to overturn it only through the lawsuit of his birth wife. Another alternative is to broaden the scope of manuscript eligibility.