[부부동거등·이혼][집24(2)민,132;공1976.8.15.(542),9278]
Whether a wife who has neglected the duty of living with her husband and has been living together with her husband and has married with her baby, can claim support fees from her husband.
Husband and wife are stipulated in Article 974 of the Civil Code that they are under duty of support, and where the wife has no ability of self-support, the husband is responsible for supporting the wife. However, where the wife voluntarily abandons and separates the husband's duty of living with the husband, the husband cannot claim support fees from the husband, and where the wife does not comply with the husband's request for delivery and the wife raises the child, and the biological mother who is the intention to continue to grow up in the future is to fulfill his duty of support, and therefore, he cannot claim support allowances from the father, regardless of whether the father has ability of self-support, or is in the past or in the future.
[Defendant-Appellee] Plaintiff (Attorney Han-chul et al., Counsel for defendant-appellee)
Appellant (Appellant) (Attorney Lee Dong-woo, Counsel for defendant-appellant)
Daegu High Court Decision 74Reu34,35 delivered on April 1, 1975
The appeal shall be dismissed. The costs of appeal shall be borne by the appellant.
The grounds of appeal and supplementary reasons are examined together.
1. As to the divorce
In accordance with the records, the court below's decision on the facts based on the evidences of the city and, accordingly, concluded that the claimant is responsible for the dissolution of marriage between the claimant and the respondent, and accepted the action that accepted the respondent's claim for divorce. There is no error of law that misleads the facts against the rules of evidence, such as the theory of lawsuit, and there is no error of law that found the defendant's claim for divorce.
2. With respect to support allowances:
(1) Generally, Article 974 of the Civil Code that the husband is obligated to support each other, and the respondent, who is the husband, has no self-support ability, is responsible for supporting the claimant. However, according to the records, according to the judgment of the court below, the claimant, who is the wife, has determined that the claimant voluntarily has the duty to live with the respondent, who is the husband, and is the husband, has a separate obligation to live with the respondent, and according to the records, the claimant cannot claim the support fee against the respondent who is the husband. In such a case, the claimant cannot claim the support fee against the respondent. According to the records, it is clear that the claimant's intention is the intention of fostering the child of the claimant and continuing to grow up in the future by refusing to comply with the request for delivery by the respondent, such as the plaintiff, and it is clear that the father's duty to support is fulfilled as the biological mother, and therefore it is impossible for the claimant to claim the support fee to the respondent, who is the father of the child, regardless of the past or in the future (see Supreme Court Decision 66Meu131,
The judgment of the court below in this opinion is just and there are no arguments from the dissenting opinion.
Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yang Byung-ho (Presiding Justice)