[1] Contents of the anti-social order act which is invalidated by Article 103 of the Civil Code

[2] The case holding that in a case where Gap, a legal married couple Eul, designated a person with parental authority and a custodian Eul as Eul, while the agreement is made to pay a monthly amount of child support to Eul, Gap shall pay Eul the full amount of the remaining child support including the part of the future occurrence in case Gap delayed payment, Eul shall pay damages for delay in addition to the delayed amount, and Gap shall immediately be subject to compulsory execution, and where Gap shall not be deemed to have any objection even if there is a cause for loss of benefit within the time limit, it cannot be concluded that the agreement under which Gap shall pay the full amount of the child support including the part of the future occurrence in case of loss of benefit, and damages for delay is contrary to good morals and other social order

[1] Article 103 of the Civil Act / [2] Articles 103 and 837 (1) of the Civil Act

[1] Supreme Court Decision 99Da56833 delivered on February 11, 2000 (Gong2000Sang, 686) Supreme Court Decision 2009Da37251 Delivered on September 10, 2009 (Gong2009Ha, 1638)

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim (Law Firm Shin, Attorney Lee In-bok, Counsel for defendant-Counterclaim)

Busan High Court Decision 2015Na5644, 56451 decided November 10, 2016

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit is reversed, and that part of the case is remanded to the Busan High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below approved that the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”), who was a legally married couple under the law, agreed on May 6, 2008 and agreed to pay 50,000 won per month from May 1, 2010 to the Defendant with child support, and agreed to pay 50,000 won per annum (per annum 6% per annum, interest rate per annum 7% per annum), respectively (hereinafter “instant agreement”), and on the same day, the Plaintiff agreed with the Defendant to pay 120,000,000 won to the Defendant with child support, etc. (hereinafter “the Plaintiff’s notarial deed”) by adding 20,000 won to the notarial deed prepared by the Plaintiff’s office for non-performance of a notarial deed from May 1, 2010 to April 1, 2030.

Then, the court below held that, at the time of the agreement of this case, the plaintiff paid the child support every month to the defendant a delay compensation amounting to 7% per annum for the overdue child support, but at the time of the agreement of this case, the plaintiff paid the full amount of the child support including the part of future occurrence and the delay compensation amounting to 7% per annum for the loss of interest due to delay in payment, etc. In this case, the agreement of this case aims to guarantee the plaintiff's obligation to pay the child support and constitutes a consultation on matters concerning rearing under Article 837 of the Civil Act, as it actually guarantees the plaintiff's obligation to pay the child support, and if it permits compulsory execution based on the agreement of this case and the notarial deed of this case, it may exclude the judgment of the family court as to whether the plaintiff's temporary payment, such as the child support, is compatible with the welfare of the child, and the possibility of change can be invalidated through the adjudication of the family court, taking into account the welfare of the child, and it constitutes a violation of Article 103 of the Civil Act and other social order.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. An act of anti-social order null and void under Article 103 of the Civil Act includes not only cases where the contents of rights and obligations, which are the object of a juristic act, violate good morals and other social order, but also cases where the content itself legally enforces it, or renders it an anti-social order by combining social order conditions or monetary consideration with a juristic act, and where the motive of the juristic act indicated or known to the other party is anti-social order (see, e.g., Supreme Court Decisions 9Da56833, Feb. 11, 2000; 2009Da37251, Sept. 10, 2009).

B. However, under the relevant provisions, such as Article 837 of the Civil Act, which provides for divorce and child care liability, and the reasoning of the lower judgment and evidence duly admitted, matters concerning bringing-up of a child are, in principle, determined by agreement between the parties to divorce (Article 837(1) of the Civil Act). As such, the parties to divorce may freely consult on matters concerning the burden of child support, method of payment, compulsory execution, etc. Even if the method of paying child support is general monthly or yearly, it does not need to be bound. (2) The Plaintiff and the Defendant agreed to periodically pay the child support amount of KRW 50,000,000,000,000 to the other party at the time of the instant agreement, or 300,000,000,000,000,000,000,000,000 won, including the Plaintiff’s total amount or 4,000,0000,000,000 won.

C. Nevertheless, without fully considering the various circumstances as seen above, the lower court determined that the instant lump-sum payment agreement and compulsory execution based on the instant notarial deed are null and void as it goes against good morals and other social order. In so determining, the lower court erred by misapprehending the legal doctrine on Article 103 of the Civil Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the Defendant regarding the principal lawsuit among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Jo Hee-de (Presiding Justice)