[부양료,이혼][공1992.1.15.(912),302]
In the case of mutual support duty between husband and wife, whether a claim for the support allowance before the claim for performance has been filed (negative)
Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when either spouse needs to be supported by the husband and wife, barring special circumstances, the court below's judgment ordering the payment of support allowance only from the day following the date on which the defendant delivered a written request for the payment of support allowance to the defendant for the payment of support allowance is lawful since it is consistent with the nature of the support duty or the concept of equity, it is reasonable that the person who received support can claim the payment of support allowance only for the support allowance from the day after the date on which the defendant delivered the written request for the payment of support allowance to the defendant, in the absence of special circumstances as to the past support allowance.
Article 826(1) of the Civil Act
[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellee)
[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee
[Defendant-Appellant] The Head of the Labor Relations Commission
Seoul High Court Decision 90Reu1380, 1397 (Counterclaim) decided June 18, 1991
All appeals are dismissed.
The costs of appeal shall be assessed against each party.
1. Judgment on the grounds of appeal by the Plaintiff (Counterclaim Defendant, the Plaintiff’s abbreviation)
Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when one of the husband and wife needs to be supported, in the past, barring special circumstances, the person to be supported can claim the payment of the support allowance only for those after the person to be supported failed to perform the support duty despite the person to be supported requested the support duty, and the person to be supported cannot claim the payment of the support allowance before the person to be supported requested the performance of the support duty. It is consistent with the nature of the support duty or the concept of equity (see Supreme Court Decision 90Meu781,798 delivered on October 8, 1991). Thus, in this opinion, the judgment below ordering the payment of the support allowance only from the day after the written appeal was delivered to the defendant (the plaintiff to be the defendant) cannot be deemed to have erred by misapprehending the legal principles as to the starting point of calculating the support allowance, as in the theory of lawsuit that ordered the payment of the support allowance.
In the case of this case, the court below held that there was no assertion or assertion that the plaintiff filed a support before the plaintiff filed a request for the judgment of this case with the defendant who is a person obligated to support. According to relevant evidence and records, the judgment of the court below is justified and it is difficult to view that the plaintiff filed a claim for the performance of support duty (such as theory, it is difficult to view that the plaintiff's appeal of economic difficulties to the defendant has filed a claim for the performance of support duty). Since the court below cannot be deemed to have a duty to explain and examine whether the plaintiff had requested the performance of support duty, such as theory of lawsuit, the court below did not have a duty to explain and examine whether the plaintiff had requested the defendant for the performance
2. Determination on the grounds of appeal by the Defendant’s attorney
The judgment of the court below as to the point out of the theory of lawsuit is just and acceptable in light of the relation of evidence, and it cannot be deemed that there was an error of finding a fact that could affect the judgment by violating the rules of evidence, such as the theory of lawsuit, and in light of the facts duly established by the court below, it cannot be deemed that the plaintiff has deserted the defendant in bad faith, or the marriage between the plaintiff and the defendant cannot be deemed to have been broken down to the extent that the marriage between the plaintiff and the defendant cannot be avoided due to the plaintiff's responsible cause. Thus, the judgment of the court below which judged that the defendant's claim for divorce of this case did not have a reasonable ground, such as the theory
All arguments cannot be accepted because they cannot be accepted because they are merely eliminated from the judgment of the court below on the premise that the determination of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below is criticized or that the facts recognized by the court below are inconsistent with the facts.
3. Therefore, all appeals filed by the plaintiff and the defendant are dismissed, and the costs of appeal are assessed against the plaintiff and the defendant. It is so decided as per Disposition with the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)