[양육비심판청구][공2011하,1635]
[1] Whether the right to child support in the past before the establishment of a specific claim for payment constitutes a property right for a custodian to exercise his/her right (negative), and whether extinctive prescription is run for such right (negative)
[2] The case holding that the court below erred in the misapprehension of legal principles in holding that the statute of limitations for the claim for child support had expired, in a case where the claim for child support for Gap's child support for Eul has expired, although there was no material showing that the specific claim for child support was established
[1] The right to seek payment of child support to the other party is basically an abstract legal status recognized as a basis of kinship with the other party, and it has the nature of property right more clearly independent of the other party only by converting the contents of the relevant child support into specific claim by a family court’s judgment which determines in discretion and formation of the agreement between the parties or by the contents of the relevant child support into a specific claim. As can be seen, the right of the past child support cannot be deemed as a property right for which the custodian can exercise his/her right, and there is no room to proceed with the extinctive prescription.
[2] The case holding that the court below erred by misapprehending the legal principles as to the extinctive prescription of the claim for child support in the past, where the claim for child support for Gap's child support for Eul has expired, in the case where the statute of limitations for the claim for child support for the child support for the child support for the child support for the child support for the child of 10 years has expired
[1] Article 837 of the Civil Act / [2] Article 837 of the Civil Act
[1] Supreme Court en banc Order 92S21 Decided May 13, 1994 (Gong1994Sang, 1693) Supreme Court Decision 94Meu536 Decided April 25, 1995 (Gong195Sang, 1978)
Claimant
Other Party
Principal 1 et al.
Daegu District Court Order 2008B4 dated May 19, 2008
The order of the court below is reversed, and the case is remanded to the Daegu District Court Panel Division.
The grounds of reappeal are examined.
1. The court below, citing the decision of the court of first instance, found the claim for child support against the other party due to one parent's rearing of a minor in the past can be immediately exercised, and thus, the extinctive prescription shall run from the time when the other party can exercise his right, unless there are any legal problems. Thus, the court below rejected the claim for child support support of October 17, 1996, which was later than 10 years after delivery from October 17, 2006, which was claimed for the adjudication of this case, and rejected this part of the claim.
2. However, we cannot accept the above judgment of the court below as it is.
The parents are jointly responsible for bringing up a minor, and the expenses incurred in bringing up the minor shall also be jointly borne by the parents in principle. The parent’s obligation to bring up the minor is arising from the birth of the child at the same time. Barring special circumstances, such as where the bringing up of the minor was derived from the unilateral and open objective or motive, the interest of the child was not helpful, or imposing the child on the other party is rather contrary to equity, it should be deemed that one parent may claim the other party for the expenses incurred in bringing up the minor. However, the so-called past child support can be determined by taking into account not only whether the child was brought up and the amount of the expenses incurred in bringing up the child, whether the other party was aware of the support obligation, whether the child was a normal living expense required for bringing up, or whether the child was a special expense (such as treatment expenses) required for bringing up the child, but also the scope of sharing the child deemed appropriate in consideration of various circumstances such as the property status, economic ability, equity in bearing the burden of the parties (see, e.g., Supreme Court en banc Decision 2005Da4294.
On the other hand, the right to seek payment of child support to the other party is a very abstract legal status that is basically acknowledged based on the relationship of relatives as seen earlier, and the right to claim payment of child support is converted into a specific claim by a family court's judgment which determines the contents of the consultation between the parties or by discretionary and formation of the contents of the relevant child support, and thus has the nature of a more clearly independent property right.
As such, the right to child support in the past cannot be deemed as a property right for a custodian to exercise his/her right before a specific claim for payment is established through an agreement between the parties or a family court's adjudication, and therefore, there is no room for extinctive prescription to proceed with this.
However, the court below held that the claim for child support for the period prior to October 17, 1996 expired in this case where no material was found to have established the above specific claim for child support on the record, which affected the conclusion of the judgment by misapprehending the legal principles on the extinctive prescription of the claim for child support in the past.
3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)