親子關係之決定──自婚生推定及認領之比較一探血緣與意思之角力

Factors in Forming Paternity──Blood and Intent

親子關係決定之立法例，以血緣及意思為重要考量因素。本文透過無血緣關係之婚生推定子女及經認領之非婚生子女之比較，討論：（一）血緣及意思在決定親子關係上之差異，並就實體法婚生推定除斥期間所欲實現的價值，評析程序法創設繼承權被侵害之人提起否認之訴之妥當性；（二）檢討實體法認領定義與戶政認領登記之落差；（三）通說就無血緣關係之認領採無效說所生身分不安定性，最高法院判決如何加以限制或補救，進而提出採撤銷說之可行性；（四）探討身分安定性與血緣認知權共存之可能。

Blood and intent are two crucial factors in forming paternity in lawmaking. By comparing a child, whom is presumed to be born in wedlock, without a blood connection to a father, and an out-of-wedlock child acknowledged by said father without a blood connection, this article explores how blood and intent affect the relationship between a father and a child, in the aforementioned cases, differently. Currently, procedural law entitles the successor, who claims his/her inhabitant benefit is infringed, to initiate an action on the disavowal of paternity. The author argues that such an entitlement damages the value demonstrated by the substantive law, which entitles only a parent or child to disavow paternity within the statutory period. Moreover, the author explains the gap between the definition of acknowledgment in the substantive law and the practical registration of acknowledgment in the Household Registration Office. Furthermore, this article analyzes the feasibility of adopting “revocation,” instead of the majority’s view of “invalidity” on paternity, when the out-of-wedlock child is acknowledged by said father without a blood connection. The author first explains that the problem with this view of “invalidity” is the instability of the seeming paternity, which could be overturned at any time by any relevant person. Then the article introduces how the Supreme Court has perceived this drawback, and has made ways to limit or transfer the view of “invalidity.” Lastly, the author proposed the possibility of the balancing the stability of out-of-wedlock paternity with the time-honored right to know one’s blood relations.