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(영문) 대법원 1992. 3. 31. 선고 90므651, 668(병합) 판결

[부양료][공1992.5.15.(920),1424]

Main Issues

(a) The case holding that an agreement between the wife and his wife, while divorced, shall take charge of bringing up the child, and the husband, as a support allowance for the child, to pay monthly the child 80 percent of his/her salary and 700 percent of his/her bonus that the child shall pay to the child every month until his/her graduation from a university, does not constitute an unfair legal act that significantly lose equity;

(b) whether the court can arbitrarily increase or decrease the content of the agreement in a case seeking the implementation of the agreement pursuant to the agreement between the parties on the method and degree of the support and coordinate the support obligations of the person under duty to support;

(c) The case interpreting the expression "80 percent of his salary under the above "A" as all remuneration, i.e., the full amount of remuneration which a university professor receives through ordinary service at his/her university where he/she works, i.e., part-time lecturer fees that he/she would have been employed in excess;

Summary of Judgment

(a) The case holding that the agreement between the husband and the husband’s first agreement to leave the custody of a child in the course of divorce between the husband and the husband’s agreement to leave the custody of the child, but the circumstance changes and the wife’s agreement to leave the custody of the child and the support fee for the child, which provided that the husband shall pay every month to the child 80 percent of his salary and 700 percent of his/her bonus to the child until he/she graduated from the university, is remarkably unfair, and thus, it cannot be deemed that the agreement is null and void or compulsory performance of the agreement

B. When an agreement on the method and degree of support is reached between the person having the supporting right and the person under duty to support, the person under duty to support should perform the obligation under the agreement, unless the agreement is amended or revoked by agreement between the parties, or by trial of the court, and the court is required to change or revoke the agreement. Thus, in the case where the person having the supporting right seeks the implementation of the agreement, the court cannot arbitrarily adjust the person under duty to support by adding or revoking the content of the agreement.

C. The case interpreting the phrase “a salary” as all remuneration, i.e., the full amount of remuneration received by the husband who is a university professor by performing ordinary work at the university where he/she works, regardless of the pretext thereof, on the ground that it refers to all money and valuables received by the worker as compensation for ordinary work regardless of the pretext thereof, i.e., the full amount of remuneration received by the husband who is a university professor by performing ordinary work at the university where he/she works, i.

[Reference Provisions]

(b)Article 837(b) of the Civil Code;

Claimant-Appellee

Claimant 1 et al., Counsel for the plaintiff-appellant

appellee-Appellant

appellees

Judgment of the lower court

Seoul High Court Decision 89Reu22,89Reu39 (Joint) delivered on June 22, 1990

Text

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

Reasons

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the claimant, who is a minor child born between the defendant and the person other than the defendant, based on the evidence of the city, was originally agreed to nurture the defendant at the time of divorce, but the respondent tried to flee with another woman, and thus, the claimant's claim and the non-claimer under arbitration of the non-party 1 on September 12, 1986, the court below rejected the defendant's payment of bonuses of 80% and 700% of his salary to the claimant and the claimant as support allowance between the plaintiff and the non-party 1 on the ground that the non-party 1 should be responsible for raising the defendant and the non-party 1 under the arbitration of the non-party 1 and the non-party 1 on September 12, 1986, the defendant did not claim that the defendant should pay bonuses of 80% from October 18, 1986 to the date of graduation of the university, and determined that the above agreement should no longer be concluded between the claimant and the defendant's's's claim.

In light of the records, the above fact-finding by the court below is justified and it does not seem that there was an error of law such as violation of the rules of evidence against the theory of lawsuit (the reason for divorce between the respondent and the non-claimer does not affect the conclusion of the judgment even if the court below's fact-finding was erroneous). In light of the facts established by the court below, it cannot be said that the above agreement is remarkably unfair because it loses equity and thus it is invalid or forced to implement it.

The circumstances and contents of the above agreement were erroneous, and there is no reason to criticize the original judgment due to erroneous determination on the validity of the agreement.

2. Where an agreement is reached between the parties with respect to the method and degree of support between the person having the right to support and the person under duty to support, the person under duty to support shall, unless the agreement is amended or revoked by agreement between the parties, and unless the agreement is amended or revoked by trial of the court, and the court shall change circumstances to amend or revoke the agreement. Thus, in this case where the claimant seeks the implementation of the agreement, the court shall not arbitrarily increase or decrease the content of the agreement and adjust the duty to support of the respondent. Thus, the court below recognized that the claimant cannot coordinate the respondent's duty to support. In other words, it cannot be said that the ground for changing the above agreement or becomes a circumstance to invalidate it merely because the claimant 1 and the respondent expressed their opinions about the arrangement of the family register for the re-re-employment of the respondent and the faithful implementation of the above agreement. Accordingly, it is justifiable to accept the respondent's argument that the above agreement was invalidated by the court below, and it is not justified in the opinion of the dissenting opinion.

3. In general, when using the word "wages" without any explanation, regardless of the pretext thereof, the court below is just to interpret the expression "80 percent of the salary under an agreement between the parties to the case as the full amount of the salary that the defendant, university professor, receives at the university where he works, i.e., the part-time lecturer's fee, excluding the part-time lecturer's fee that he is entitled to overtime work, and there is no reason to argue that it should be limited to the above-mentioned salary.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)