[1] Whether a couple who is under separate jurisdiction can seek designation as a custodian for a child (affirmative)

[2] In a case where there is an agreement between the married couple in a separate place on the bringing-up of a child, whether such agreement can be sought (affirmative)

[1] In a case where a couple is living separately and there is no agreement as to the bringing-up of a child, the court may designate a bringing-up of the child according to Article 837 of the Civil Code.

[2] In a case where there is an agreement between the married couple concerning the bringing-up of children, the parties may seek a change thereof to the court by applying mutatis mutandis Article 837(2) of the Civil Act, taking into account the age, status of the parents’ property and other circumstances

[1] Article 837 of the Civil Code, / [2] Article 837 of the Civil Code

[1]

[Plaintiff-Appellee] 92S21 decided May 13, 1994 (Gong1994Sang, 1693)

[2] Supreme Court Decision 90Meu699 delivered on June 25, 1991 (Gong1991, 2036)

Seoul High Court Order 92S17, 92S18 dated December 30, 1992 (Gong1993Sang, 610)

Claimant

Other Party

1. The requester shall be designated as the custodian of the case;

2. The other party shall pay to the claimant the amount of 4,400,000 won with the child support of the principal of the case and the amount of 400,000 won per month from December 1, 1997 to February 28, 2002, and the amount of 600,000 won each month from March 1, 2001 to March 15, 2019.

3. The claimant's remaining claims are dismissed.

4. 4/5 of the cost of trial shall be borne by the other party, and the remainder by the claimant.

5. Paragraph 2 can be provisionally executed.

Paragraph (1) and the other party shall pay the claimant the amount of KRW 13,00,000 and the amount of KRW 250,000 per annum from the day following the day on which a duplicate of the written adjudication of this case was served on the other party to the day of full payment, and the amount of KRW 400,00 per annum from January 1, 1997 to February 28, 2001 and KRW 600,00 per month from March 1, 201 to March 15, 201.

1. Factual basis

A. Facts of recognition

(1) The claimant and the other party are married on December 7, 1985 and have the principal of the case under the chain of marriage.

(2) As the claimant and the other party live together in Daejeon, from January 1, 1989, the other party transferred from his workplace to Yongcheonnam, the other party sent the company house to his workplace, and from May 1, 1989, the claimant sent the case principal to the principal of the case and Daejeon, and the other party left the company house on or around May 1989, but the other party refused to live together and returned to the other party's company house, but the other party started to live separately and then moved to all the other party's things. The claimant had taken care of the above company house as well as the principal of the case on May 1990.

(3) On December 29, 1990, the claimant filed a claim for payment of the principal of this case with the plaintiff as his legal representative on December 29, 1990, who did not pay the other party living expenses, with the other party as the plaintiff and was sentenced to a judgment in favor of some of the above support (90d6299 case) on January 9, 1992. On November 1, 1992, the appellate court (92Reconciliation104 case), which is the appellate court, made the plaintiff as the supplementary intervenor of the plaintiff and the other party as the plaintiff. The other party agreed on November 5, 1992 between the plaintiff and the other party as the child support of the principal of this case from December 1, 1990 until the child care of the principal of this case is designated by the court. On February 2, 199, the child support of this case after the above designation shall be separately agreed on the settlement between the principal of this case and the other party or the other party of this case (hereinafter referred to judicial compromise).

(4) During five times between January 8, 1993 and December 28, 1996, the claimant was paid child support through the above judicial compromise between the other party and the Gwangju District Court’s net support and the other party’s order for seizure and assignment of the claims for child support under the above judicial compromise.

(5) On September 7, 198, the other party filed a divorce lawsuit (90d6299 case) against the claimant at the Daejeon District Court on April 20, 1990, and withdrawn on or around February 1992, the Seoul Family Court (92d5387 case) which was the first instance court (92d5387 case) again filed a divorce lawsuit, etc., and on or around February 1992, "the claimant shall be divorced." The other party shall be appointed as the guardian of the principal of the case. However, on September 16, 1993, the appellate court (93Reu2407 case) rendered a judgment revoking the above first instance judgment and dismissing the other party's claim. The other party's appeal against the appellate court's judgment was dismissed by the Supreme Court (94Meu1096 case) and became final and conclusive as it is.

(6) The other party has been working as an employee of the Elmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm

(b) Evidential evidence;

Evidence No. 1-2, Evidence No. 2-9, Evidence No. 12-6, respectively, the content of the investigation report prepared by the investigator or police officer, and the whole purport of the examination.

2. Appellant’s assertion and judgment

A. The claimant's claim of this case is a claim of this case and the other party disputes the designation of the claimant as the rearinger of the principal of this case, so the other party is separate from the other party and the court may designate the rearinger of the child in accordance with Article 837 of the Civil Code. According to the above facts, the claimant and the other party are legally married couple, and the other party are parents of the principal of this case, or the claimant has been fostering the principal of this case while living separately from the other party. The court may designate the rearinger of the principal of this case in accordance with the above legal principles, since there is no disagreement as to whether the person should take care of the principal of this case. Thus, the court may designate the rearinger of the principal of this case. The defendant's age, gender, and current address, the other party has continuously brought up the principal of this case after the birth of the principal of this case, and the other party has not voluntarily paid the child support under judicial compromise on the payment of the child support, and it is reasonable to have the petitioner rear the principal of this case for the welfare of the principal of this case.

B. Meanwhile, the couple who is separate from the married couple has the obligation to jointly bear the child support, regardless of who actually raises the child, and as such, when one of the couple raises the principal of the case alone, the other party has the obligation to share the child support.

However, according to the above facts, the claimant has raised the principal of the case independently from May 1989 to the present date. The claimant and the other party shall pay the above judicial compromise (it shall be paid the child support of the principal of the case until the designation by the court) at the Gwangju High Court on November 5, 1992, and as determined below, since the above judicial compromise had not been designated by the court until the above case was made, the obligation to pay the child support of the other party due to the above reconciliation continues until the trial of this case.

C. Claim for child support for the period before December 31, 1996

After the above judicial conciliation rendered at the Gwangju High Court on November 5, 1992, the claimant and the other party rendered a ruling to designate the plaintiff as the fosterer of the principal of this case on September 16, 1993, the Seoul Family Court held that after the judgment, the plaintiff should separately agree on the child support of the principal of this case according to the above judicial reconciliation. However, since there was no such agreement, the other party is liable to pay the child support according to the rate of KRW 400,000 per month among the expenses paid by the claimant for the rearing of the principal of this case after the date the above judgment was rendered, the other party shall pay the unpaid child support of KRW 13,00,000 as the unpaid child support for the period from September 16, 1993 to December 31, 1996.

However, according to the above facts, the judgment of the Seoul Family Court rendered on September 16, 193 at the appellate court rendered a judgment revoking the judgment at the appellate court, and the judgment at the appellate court became final and conclusive after the judgment became final and conclusive, so the claimant's assertion on the premise that the guardian of the principal of the case was not designated by the court after the above judicial compromise is without merit. However, the above judicial compromise is a consultation between husband and wife related to bringing up the child by considering the child's age, the parent's financial status, and other circumstances pursuant to Article 837 (2) of the Civil Code, and the party can seek a change in the court. Thus, the claimant's claim for the adjudication at the time of the above judicial compromise is seeking a change in the amount of child support more than the above legal compromise. In such a case, the court may change the above consultation where it is necessary to change the interests of the principal of the case in consideration of the child's age, the parent's financial status, and other circumstances.

However, according to the above facts, the applicant received the child support for the period until December 31, 1996, which is to be paid by the other party through the above judicial compromise, by compulsory execution, and filed a claim for the adjudication of this case on January 17, 1997, and considering the time when consultation (the above judicial compromise) about the bringing-up of the principal of this case was held on January 17, 1997, the current applicant and the other party's revenue and living level, and necessary living expenses and education expenses to the principal of this case after the claim of this case was filed, there is a need for the above change for the period after January 1, 1997 when the date of the obligation to pay the child support through the above judicial compromise has expired, but it is not deemed necessary for the period until December 31, 1996, and therefore, the claimant's claim for the child support exceeding the amount set forth in the above judicial compromise as to the period until December 31, 1996.

D. Claim for child support after January 1, 1997

As determined above, it is necessary for the other party to change the amount to be paid to the child support of the principal of this case after January 1, 1997. In light of various circumstances such as the above-mentioned age of the principal of this case, current education expenses, the applicant and the other party's income and property, and living standards, it is reasonable for the other party to pay 400,000 won per month to the applicant for the child support from January 1, 1997 until the notice of the judgment of this case is given. As determined above, as long as the other party designates the applicant as the child support of the principal of this case, the other party has the obligation to share the child support of the principal of this case. Considering the various circumstances recognized above, the other party shall pay 400,000 won per month until February 28, 2002 after the judgment of this case, and the amount to be paid by 100,000 won per month from the next day to March 15, 2019.

4. Conclusion

If so, the claimant shall be designated as the guardian for the principal of this case, and the other party shall be liable to pay to the claimant the amount of 4,400,000 won in total from January 1, 1997 to November 30, 1997 with the child support of the principal of this case (4,00,000 won x 11 month) and 400,000 won in each month from December 1, 1997 to February 28, 2002, and 40,000 won in each month from March 1, 201 to March 15, 2019 to March 15, 201. Therefore, this judgment shall be judged as above.

Judges Park Jong-ho