FOR THE PURPOSE OF THE EXPIRATION OR NOT, OF THE ANSWERING ACTION OF ESTABLISHED PATERNITY IN THE PERUVIAN CIVIL CODE

Abstract

The subject matter of this article, is based, first, on the expiration period established in Article 364 of the Peruvian Civil Code, should not be such and by the contrary should not stipulate any deadline, therefore the spouse may deny paternity when it should be denied, this emphasizing rights as important and fundamental as the right to the true identity of a person, whether a child or father, that is, in matters of family status, specifically in the cases of Filiation, The topics should be regulated with an exceptional character and analyzing each case in particular.

The second case is referred to the extramarital filiation, whose term is referred to in article
400 of the Civil Code, which states: "The deadline to deny recognition is ninety days, from the one in which it was known of the act "; that is, the substantive norm re-establishes this term of expiration to deny recognition, also in the case of extramarital filiation.

In this sense, the Supreme Court of Justice of our country has referred abundant jurisprudence, in the sense of the non-application of Article 400 of the Civil Code, regarding extramarital filiation, since in relation to the subject there will always be a conflict of legal norms that are applicable to the sub litis case, on the one hand the constitutional rule that recognizes as a fundamental right of the person the right to identity and another legal rule that establishes in ninety days, the deadline to deny recognition by the father the mother that it has not intervened in the recognition, without that of the joint interpretation of the referred norms it is feasible to obtain an interpretation according to the constitution; for this reason, the antinomy between a rule of a legal nature and another of a constitutional nature is presented, so the first one should be inapplicable and the second should apply, since there is no objective and reasonable reason to justify the need to fix the ninety days term to deny the illegal recognition.

Therefore, what we want to show is that there is no reason for the validity of articles 364 and 400 to subsist in our civil substantive order, which is why they should be repealed, since otherwise, the right actually injured, would be the right to true identity, that is, from the perspective of the child, the right to know who is his or her true father or father and, from the father's point of view, to know if the child of his or her spouse is really their biological child and In short, this right cannot be limited for such a short period (90 days), especially, that after it is concluded it is expired, which collides with fundamental rights.