In a case where an adult child may claim a support allowance against his/her parents, and the scope thereof / Whether an adult child may claim a support allowance against his/her parents in order to cover study expenses difficult to be considered as ordinary living expenses (negative in principle)

Article 826(1) of the Civil Act provides that the duty of mutual support between husband and wife, including rearing and education of minor children, is an essential duty in marriage, and the primary duty of support is to ensure the living of the person to be supported as the same level as that of the person to be supported. On the other hand, the duty of support to a child of full age as a lineal blood relative under Articles 974 subparag. 1 and 975 of the Civil Act is the secondary duty of support to support his/her livelihood only when the person to be supported is unable to maintain his/her livelihood due to his/her own ability or labor, on the premise that the person to be supported is able to support his/her own ability or labor, insofar as it is difficult for him/her to meet the demand for living expenses due to his/her own ability or labor to the extent that his/her parents are able to support his/her parents.

Furthermore, such support allowance is, in principle, limited to the scope of the ordinary cost of living of the person to be supported, taking into account the living standard of the person to be supported, the financial resources of the person to be supported, and all other circumstances. Therefore, barring any special circumstance, a child of majority cannot claim against his parents the support allowance to appropriate study expenses that cannot be deemed as ordinary cost of living.

Articles 826(1), 974 subparag. 1, and 975 of the Civil Act

Supreme Court Decision 2011Da96932 Decided December 27, 2012 (Gong2013Sang, 235) Supreme Court Order 2013S96 Decided August 30, 2013

Claimant (Attorney Park Young-chul, Counsel for defendant-appellant)

Other party (Law Firm Daegu, Attorneys Park Jin-jin et al., Counsel for the plaintiff-appellant)

Daegu Family Court Order 2016BB48 dated December 26, 2016

The reappeal is dismissed.

The grounds of reappeal are examined.

1. The duty of mutual support between husband and wife, including rearing and education of minor children, is an essential duty in marriage, and the primary duty of support is to ensure the living of a person to be supported with the same degree as that of a person to be supported. On the other hand, the duty of support to a child of full age as a lineal blood relative under Articles 974 subparagraph 1 and 975 of the Civil Act is the secondary duty of support, provided that a person to be supported is unable to maintain his/her livelihood due to his/her own ability or labor, insofar as the person to be supported cannot maintain his/her livelihood due to his/her own ability or labor (see, e.g., Supreme Court Decisions 201Da96932, Dec. 27, 2012; 201Do201396, Aug. 30, 2013).

Furthermore, such support allowance is, in principle, limited to the scope of the ordinary cost of living of the person to be supported, taking into account the living standard of the person to be supported, the financial resources of the person to be supported, and all other circumstances. Thus, barring any special circumstance, a child of majority may not claim against his/her parents the support allowance in order to appropriate study expenses difficult to be considered as ordinary cost of living.

2. The Re-Appellant (hereinafter “Appellant”) at the lower court asserted that the Plaintiff’s attending the department of ○○○○ University at △△△△△ University constituted a case in which he is unable to live with himself or by work, and filed a claim against the other party, his father, who is his father, for the payment of support fees equivalent to the cost of studying abroad. On this basis, the lower court rejected the claimant’s claim for support fees on the ground that the claimant’s ground of the circumstances, such as the applicant’s age and health status, educational background, and the content and amount of support fees sought by the claimant, do not constitute a case in which the claimant is unable to maintain his livelihood due to his own ability or

In light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine as to Articles 974 subparag. 1 and 975 of the Civil Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as alleged in the grounds of reappeal.

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

Justices Kim Jae-hyung (Presiding Justice)