2016 Dives 2093 Support allowances

A (1978 Students)

Address

B (B) 1975 Livelihood)

Address

Attorney Park Jae-hoon

March 14, 2017

1.The other party shall be the claimant:

(a)payment of 5,00,000 won in excess of the fee for refusal;

B. From June 24, 2016 to June 24, 2016, the monthly payment of KRW 1,000,000 shall be made on the last day of each month from the date of arrival of the date of resolving the state of separation between the claimant and the other party or the date of the end of the marriage hall.

2. The appellant's remaining appeals are dismissed.

3. The cost of a trial shall be borne by each person.

The other party shall pay to the claimant KRW 16,50,00, and KRW 2,500 per month from the date of service of a copy of the written appeal of this case to the date of separate resolution or termination of marriage or marriage.

1. Facts of recognition;

The following facts are recognized by the purport of the whole records and examinations, or are outstanding in this court:

A. On January 26, 2004, the other party entered into an agreement on June 19, 2012 when he/she entered into a marital life with three children under the chain after filing a marriage report with the Nonparty.

B. On October 21, 2012, an applicant filed a marriage report with the other party on January 16, 2015 and filed a marriage report on January 16, 2015, and between the other party and his/her child C (2013 birth) and D (2015 birth).

C. On November 2015, the other party left a house and remains separate from the claimant until now. On October 1, 2015, the other party paid 500,000 won to the claimant under the name of living expenses so far, and thereafter did not pay the cost of living or the child support so far.

D. The claimant currently resides with his/her children in friendly relationship, raises his/her children with the support of friendly relationship, and is liable for considerable debts.

e. The other party, as a pilot of the Do, shall be the head of the field office at the site of the Do construction site.

F. Meanwhile, on August 18, 2016, the other party filed a lawsuit against the claimant seeking divorce or consolation money under the court 2016Ddan208309, which is pending in the instant trial. However, it is difficult to find that the evidence submitted by the other party alone was insufficient to recognize that the marital relationship between the claimant and the other party was no longer difficult to recover. Even if the failure was caused by the failure, the cause of the failure appears to be an inappropriate factor in the relationship between the other party and the non-trial E, and thus, the other party’s claim for divorce cannot be accepted. The above judgment became final and conclusive on March 3, 2017.

2. Determination

(a) Occurrence of liability to pay support allowances;

Husband and wife have a duty to live together and support each other and cooperate (Article 826(1) of the Civil Act); expenses incurred for a couple’s community life shall be borne jointly by both husband and wife (Article 833 of the Civil Act); and in the Family Litigation Act, Article 826 of the Civil Act and Article 833 of the Civil Act stipulate the disposition concerning the sharing of living, support, cooperation, or bearing of living expenses as non-contentious cases of category E [Article 2(1)2(b)1 of the Family Litigation Act].

Such support between husband and wife differs from that of the so-called "the obligation to maintain a community life" that enables the other party's living to be guaranteed to the same extent as his/her own living. It is reasonable to view that the support between the relatives who are "the obligation to assist the other party's living" (Article 976 through 978 of the Civil Code) includes not only the expenses required for food, clothing and housing, but also the medical expenses, school expenses, and child support for children.

Therefore, the claimant's husband and the father of the minor child who are the father of the claimant are obligated to pay support fees, including child support, educational expenses, etc., to the claimant who actually raises the minor children.

(b) The amount of support allowances;

1) As to the past support allowance among husband and wife’s support duty, barring any special circumstance, a person eligible for support may claim payment of support allowance only for the past support after the person liable for support has failed to perform the support duty despite having requested the person liable for support to perform the support duty, and the person liable for support has failed to perform the support duty, and thus, in spite of a husband and wife’s claim to perform the support duty, the spouse has failed to perform the support duty and has delayed performance or has to pay the past support allowance before demanding performance, insofar as there are special circumstances under the nature of the support duty or the concept of equity. Furthermore, the amount of support allowance between husband and wife shall be determined by comprehensively taking into account the property status, revenue amount, living level and economic ability of both parties, social status, etc. of the person liable for support duty, the administration of the support duty thereafter, and the circumstances and degree of failure in marital life (see Supreme Court Decision 201Da9632, Dec. 27, 2012).

2) In addition to the fact that the claimant's claim for the support fee of this case is mainly seeking the share of the common living expenses of the couple, such as the child support for the minor children, and the other party goes away from around November 2015 due to the conflict with the claimant due to an inappropriate relationship with the non-trial E, and paid 500,000 won as the living expenses on October 1, 2015, the applicant does not pay the living expenses or the amount of the child until now. The claimant is currently residing in the family relationship with the minor and is able to claim the past child support expenses in this case, and the claim for the child support expenses can also be filed in the past. In addition, in this case, it can be deemed that there are special circumstances that permit the delayed performance prior to the delayed performance of the support obligation or the concept of the punishment.

In addition, the above facts and the records of this case revealed that the applicant and the other party's occupation and the degree of acquisition [the other party submitted monthly income is only 1.9 million won, and the employment insurance daily work records (No. 2) are submitted, but the other party has techniques and experience to perform on-site work at the Do construction site, so the actual income of the other party seems to be more than the other party's income. In light of the other party's occupation and experience, the other party's income will be more than the other party's income. The reasons why the claimant and the other party are separated from the other party's living at the time of living, the living expenses and child support are not paid until the other party files the judgment of this case; the amount of living expenses and child support paid by the other party at the time of living; the minor child's age and gender; and the other party's child was more than three years between the former and the former wife; the other party's refusal to serve the other party's life and the last day of 200,000 won.

3. Conclusion

Thus, the plaintiff's claim for the support fee of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Park Sang-sung

1) The support fee up to the service date of the duplicate of the instant written request for trial in line with the petitioner’s request and assistance is an excessive rejection fee, and a duplicate of the instant written request for trial.

Support allowances after the service date refers to the future support fees.