[1] In a case where the literal interpretation or logical interpretation of the provisions of the positive law of the civil law alone is unable to resolve a realistic legal dispute or causes a result substantially contrary to the concept of social justice, whether it may be applied by analogy (affirmative)

[2] In a case where the Family Court has decided that the guardian of a minor exercise the right of custody by limiting only the right of custody among the parental authority of the parents pursuant to Article 924-2 of the Civil Act, whether the guardian of a minor may file a claim for adjudication on child support under Article 2(1)2(b)3 of the Family Litigation Act against the non-nurt-care-child by applying mutatis mutandis Article 837 of the Civil Act (affirmative)

[1] In a case where the literal interpretation or logical interpretation of the provisions of the positive law of civil law alone is unable to resolve a realistic legal dispute, or where a result is brought about considerably contrary to the concept of social justice, it may be analogically applied to the court so that the court can settle the legal dispute reasonably and draw up the result suitable for the concept of justice by examining the legislative spirit of the positive law.

[2] Article 2(1)2(b)3 of the Family Litigation Act provides that “The disposition and change concerning the rearing of a minor pursuant to Article 837(1)2(b) of the Civil Act shall be determined as a non-contentious family case.” Article 837 of the Civil Act provides that “The determination of a child and the bearing of expenses for fostering shall be made” (Article 837) and “the family court may change matters concerning the rearing of a child or take other appropriate measures ex officio at the request of the father, mother, and prosecutor or ex officio.” Article 99(1) of the Family Litigation Rule provides that “The adjudication on the appointment and change of a child’s custody shall be made against the other parent’s parental authority as the other parent,” and Article 99(2) of the Civil Act provides that “The Family Court may ex officio limit the exercise of parental authority over the minor’s protection (Article 924) and the limitation on the protection of the minor’s welfare (Article 925).”

In light of the contents and structure of the aforementioned provision, the purport of amendment of the Civil Act, etc., in cases where the Family Court has decided to allow the guardian to exercise the right of custody for the child by limiting only the right of custody among the parental authority of the parents pursuant to Article 924-2 of the Civil Act, it is reasonable to view that the guardian of the minor may file a claim against the non-child for a trial on child support under Article 2(1)2(b)3 of the Family Litigation Act.

[1] Article 105 of the Civil Act / [2] Articles 837, 913, 914, 924-2, 925-3, 928, 932(2), and 946 of the Civil Act; Article 2(1)2(b) of the Family Litigation Act; Article 99(1) of the Rules on Family Litigation

[1] Supreme Court Decision 93Da52808 delivered on August 12, 1994 (Gong1994Ha, 2291)

Claimant

Other party (Law Firm Geumyang, Attorneys Lee Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

Principal of the case

Daejeon District Court Order 2018BB1057 dated June 25, 2019

The reappeal is dismissed.

The grounds of reappeal are examined.

1. A. In a case where the literal interpretation or logical interpretation of the provisions of the positive law of civil law alone is unable to resolve a realistic legal dispute or where a result is brought about considerably contrary to the concept of social justice, it may be applied by analogy so that the court can resolve legal dispute reasonably and draw up a result suitable for the concept of justice by examining the legislative spirit of the positive law (see, e.g., Supreme Court Decision 93Da52808, Aug. 12, 1994).

B. Article 2(1)2(b)3 of the Family Litigation Act provides that “The disposition and change concerning the bringing-up of a child under Article 837 of the Civil Act (including where the same Article applies mutatis mutandis) shall be determined as a non-contentious family case.” Article 837 of the Civil Act provides that “The determination of a bringing-up child and the bearing of expenses for bringing-up shall be determined by the matters concerning bringing-up of the child” (Article 2(2)); and “the family court may change matters concerning bringing-up of the child or take other appropriate measures ex officio at the request of the father, the mother, and the public prosecutor or ex officio.” Article 99(1) of the Family Litigation Rule provides that “The adjudication on the appointment and change of a bringing-up of a child shall be requested by one parent as the other party with parental authority over the child,” and Article 924 of the Civil Act provides that “The protection of the minor’s rights to bring-up of the child shall be restricted by the Family Court for the sake of protecting the child’s welfare (Article 927(2).7).7).

C. In light of the contents and structure of the aforementioned provision, the purport of amendment of the Civil Act, etc., in cases where the Family Court has decided to allow the guardian to exercise the right of custody for the child by limiting only the right of custody among the parental authority of the parent pursuant to Article 924-2 of the Civil Act, it is reasonable to view that the guardian of the minor may file a claim against the non-nive parent for a trial for child support under Article 2(1)2(b)3 of the Family Litigation Act, in accordance with Article 837 of the Civil Act, by analogy

1) Even where a partial restriction of parental authority is imposed, the parent’s other rights and obligations against a child are not modified (Article 925-3 of the Civil Act). Even where the Family Court restricts only the parent’s right of fostering among the parental authority for the welfare of a child, the parent still bears the duty to support the minor’s child. Therefore, even where the guardian of the minor raises the minor on behalf of the ward pursuant to Article 946 of the Civil Act, the expenses necessary for fostering the minor should be ultimately borne by the parent who is under the duty to support the minor (hereinafter “non-child”).

2) In cases where a guardian is appointed due to the restriction on the right to request a return of unjust enrichment under Article 924-2 of the Civil Act, in order to protect and educate a minor who is the ward, it is essential to secure smooth expenses necessary to perform the duties of guardianship, i.e., necessary expenses for the rearing (hereinafter “child support”). However, if a guardian does not allow the adjudication on the child support due to analogical application of Article 837 of the Civil Act to the guardian, there is no way for the guardian to claim the child support in advance to the non-child under the current Civil Act and the Family Litigation Act, which makes it impossible for the guardian to sufficiently protect and culture the minor who is the ward. In other words, in cases where the guardian raises the ward’s own property, the guardian can seek reimbursement of expenses to the non-child under his/her civil right to request a return of unjust enrichment against the non-child who is under his/her duty to support the minor (i.e., the expenses necessary for protecting and educating the ward, namely, the right to claim the child support from the ward under Article 264 of the former Civil Act.

Although the Family Court limits the parental authority of the parents for the welfare of a minor and appoints ex officio a guardian of the minor, it is against the purport of the Civil Act which has repeatedly revised the "welfare of the child," which is the basic ideology of the law of friendly children, and for this purpose, it is impossible to fully protect and educate the ward due to the lack of future child support.

3) Article 837 of the Civil Act provides for divorce, but judicial divorce (Article 843 of the Civil Act), revocation of marriage (Article 824-2 of the Civil Act), recognition (hereinafter collectively referred to as “cases where Article 837 of the Civil Act and Article 864-2 apply mutatis mutandis), and where the parents cannot bring up a minor among them while married community life, it constitutes a general provision governing “matters concerning bringing up a child”. “The matters concerning bringing up a child” includes the decision of the custodian (Article 837(2)1 of the Civil Act), and thus, the child support need not be easily determined by the Family Court ex officio for the sake of the welfare of the child (Article 837(1) through (4) of the Family Litigation Act). As such, Article 837 of the Civil Act provides that the Family Litigation Act shall apply mutatis mutandis to cases where a child is separated from parental authority and the right to bring up a child is not applicable mutatis mutandis under Article 837(2)7(3) of the Family Litigation Act).

4) In cases where the parental authority of the parents is restricted under Article 924-2 of the Civil Act, and the guardian of the minor is appointed to exercise the right to foster the minor, only one of the parents has the right to foster the minor under Article 946 of the Civil Act, and the other party bears the obligation to pay the child support. In addition, it is similar to the case where Article 837 of the Civil Act and Article 924-2 are applied mutatis mutandis in that the minor cannot grow out among the marital life of the parents, and it is necessary to secure the timely payment of the child support for the stable growth of the minor. The guardian of the minor is a person in charge of the duty to foster the ward according to the decision on the appointment of the guardian of the family court, and is not a person who bears the duty to support the ward, such as the parent of the ward, and is not a person who bears the duty to support the ward based on the nature of the parent-child relationship. Thus, it is more appropriate to secure the timely gap in the child support than the case where Article 837 and Article 946 of the Civil Act apply mutatis mutandis.

Article 924-2 of the former Civil Act (amended by Act No. 1277 of Oct. 15, 2014) only provides for the loss of parental authority (Article 924) and the loss of rights to represent and manage property (Article 925). The fact that only the parental authority of the parents among the parental authority is separated is that only the parental authority of the parents applies mutatis mutandis under Article 837 and Article 925 of the Civil Act. In this case, Article 99(1) of the Family Litigation Rules (amended by Act No. 11 of Oct. 15, 2014), which was enacted upon delegation of Article 11 of the Family Litigation Act, examples of “the father and mother” as the representative claimant of “disposition and change of child rearing” appears to have taken into account the foregoing. After, even if Article 924-2 of the Civil Act on partial restriction of parental authority was newly established, it was possible to limit only the parental authority for the welfare of the child, and the provision regarding child rearing and the child guardian’s need to be separated between the child and the child.

5) In cases where a minor’s child cannot grow out of the parent’s marital life, it is very important to secure a timely statement of child support for the stable growth of the minor’s child. In full view of the above, it is reasonable to deem that the minor’s child could not grow out among the parent’s marital life, and is in line with the concept of justice to affirm the claim for child support for non-child care by the guardian for the sake of the welfare of the child, and is an effective and appropriate means to resolve the dispute rationally. In full view of the above, it is reasonable to deem that the guardian who has the authority to rear the minor by partial restriction of parental authority under Article 924-2 of the Civil Act may file a claim for a trial on child support under Article 2(1)2(b)3 of the Family Litigation Act against the non-child care-child under Article

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The claimant is the applicant’s reference to the applicant and the external reference to the principal of the case, and the other party is the spouse of the applicant. The other party and the applicant filed a marriage report on February 7, 2006 (the date of birth omitted) and the principal of the case was born among them.

2) From December 16, 2012, the applicant brought up the principal of the case alone from around December 16, 2012, which began to separate from the other party, and filed a lawsuit seeking a divorce, etc. against the other party on September 11, 2014. The said divorce lawsuit was terminated on May 25, 2016 by the non-applicant’s death. The claimant’s husband and wife took care of the principal of the case brought up by the non-applicant (hereinafter “the deceased”).

3) On June 10, 2016, the claimant filed a petition against the other party for adjudication on the loss of guardianship and the loss of parental authority, and on May 25, 2018, the partial limitation of parental authority and the decision on the appointment of the guardian of the minor (hereinafter “decision related to this case”) to the effect that “the other party’s parental authority over the principal of this case limits the protection, culture right, right to designate residence, right to take disciplinary action, and other rights related to custody and appoints the petitioner as the guardian of the principal of this case with respect to the said limited authority.”

4) Of the divorce proceedings with the deceased, the other party paid KRW 700,000 per month to the deceased as child support pursuant to a prior disposition, but did not pay the child support from the time when the deceased died and the claimant brought up the principal of the case.

B. We examine the above facts in light of the legal principles as seen earlier. The other party’s right to rear the principal of the case was restricted through the relevant decision of this case, and the claimant has legitimate authority to rear the principal of the case as a guardian of the minor within the limited scope. In this case, it is reasonable to view that the claimant is in a position to file a claim against the other party, who is non-nurated child-care, by analogical application of Article 837 of the Civil Act, for a disposition concerning fostering the principal of the case. Therefore, the claimant may claim the other party’s child support pursuant to Article 2(1)2(b)3 of

For the reasons indicated in its holding, the lower court is justifiable to have determined that the claim for the instant child support trial was lawful, and there was no error in violation of the Constitution, law, order or rule that affected the trial

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)