Guardianship Order for a divorced mother's child

Even when a parent is divorced, his/her mother shall be a guardian in priority rather than a collateral blood relative within the third degree of relationship as stipulated in Article 932 of the Civil Act.

Article 932 of the Civil Act

Supreme Court Decision 84Meu2046 Delivered on November 12, 1984

[Defendant-Appellant-Appellee] Attorneys Song Young-sik et al.

Attorney Lee Sung-soo, Counsel for the defendant-appellant

Seoul High Court Decision 84Na2626 delivered on August 16, 1985

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the judgment of the court below and the records, the defendant was born on October 19, 1973 between the married non-party 1 and 2, and the non-party 2 was divorced from the non-party 1 on May 14, 1981 and was removed therefrom, but still remains alive. As the non-party 1 died without designating the defendant's guardian on August 24, 1982, it is evident that the non-party 3, who is the white father of the defendant, was appointed as the defendant's legal guardian on January 26, 1983 and the non-party 3 was appointed as the defendant's legal representative, and the lawsuit was instituted by the court below up to the time of the judgment of the court

However, even if the parents have divorced, they should become a senior guardian rather than a collateral blood relative within the third degree of relationship as stipulated in Article 932 of the Civil Code. Thus, if the defendant's biological mother becomes a senior guardian, the non-party 2 shall be the defendant's guardian rather than the third degree of relationship. As such, if the non-party 2 becomes a defendant's guardian, the non-party 3 shall not be the defendant's guardian, and therefore, the legal representative shall not be the defendant's guardian. The measures taken by the court below without ordering the correction of the defendant's legal representation right shall be considered as the defendant's legal guardian, and without ordering the correction of the defendant's legal representation right, the court below erred in the misapprehension of legal principles as to the minor's legal guardian and the right to attorney in the lawsuit

Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jin-young (Presiding Justice)