[1] In a case where only a claim for some of the "matters concerning fostering a child" under Article 837 (2) of the Civil Act is filed, whether the Family Court may render a judgment on the other items ex officio (affirmative)

[2] In the case of the family non-litigation case of Article 93 (2) of the Family Litigation Rule, whether it applies to the case where the party wants to perform his/her property obligation without specifying the purport of the claim, such as the amount, or the family court decides ex officio the items concerning the obligation of property (negative

[3] The case holding that Article 93 (2) of the Family Litigation Rule does not apply to the family litigation case where Gap's voluntary recognition of the child is a family non-litigation case of category E under Article 2 (1) (b) (2) and 5 of the Family Litigation Act, and the designation of the person in parental authority and the person in parental authority and the person in parental authority and the person in parental authority are requested for delivery of a child, and the family court can decide ex officio on the burden of the child care expenses not explicitly claimed among "matters concerning the child care" under Article 837 (2) of the Civil Code, whether the visitation right is exercised, and how the visitation right is exercised

[1] Article 837 (2) of the Civil Code / [2] Article 93 (2) of the Rules on Family Litigation / [3] Article 93 (2) of the Rules on Family Litigation, Article 837 (2) of the Civil Code

Claimant (Attorney Seo-chul et al., Counsel for defendant-appellant)

Other Party

Principal of the case

Seoul Family Court Order 2009B89 dated August 7, 2009

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the assertion of violation of statutes

Where a person outside of wedlock is voluntarily recognized, “matters concerning fostering” shall be determined by an agreement between the parents (Article 864-2, Article 837(1), and Article 837(2) of the Civil Act). However, where the parents are unable to consult on matters concerning the fostering of children or where an agreement is not reached, a family non-litigation case under Article 2(1)(b)(e) of the Family Litigation Act shall be subject to a decision by filing a petition with the Family Court for adjudication of “disposition concerning fostering” as a non-litigation non-litigation case under Article 2(1)(2

Meanwhile, Article 93(1)(e) of the Family Litigation Rule provides that a family court shall decide on the family non-litigation case of Category E in the most reasonable manner to adjust the legal relationship that has become the object of the claim. As such, in the above family non-litigation case, the family court may form the legal relationship of the party and order its implementation in a broad discretion from the perspective of guardianship, and shall not be strictly bound by the purport of the party’s claim. In addition, the family non-litigation case of Category E in Article 2(1)(b)(3) of the Family Litigation Act refers to a disposition concerning fostering a child under Article 837 of the Civil Act, and Article 837(2) of the Civil Act provides that “the matters concerning fostering a child” shall include (i) the decision of the child, (ii) the burden of fostering the child, (iii) the exercise of the visitation right, and the method thereof. In full view of these circumstances, the family court may render ex officio a judgment on the other matters even in cases where there is only some of the claims concerning the “matters concerning fostering” under Article 837(2).

Furthermore, Article 93(2) of the Family Litigation Rule provides that “A claim seeking the payment of money, the delivery of goods, or the performance of other property obligations shall not be ordered to perform obligations exceeding the purport of the claim.” However, considering that family non-litigation cases of Category E are generally in dispute and have the nature of litigation, it is not different from the typical non-contentious case, and that where the parties specified the purport of the claim in a claim for the performance of property obligations such as the payment of money, if they made a claim by specifying the purport of the claim, it is more obvious that the nature of litigation is very strong, it is reasonable to view that the family court may accept it only within the scope of the purport of the claim by restricting the discretion of the family court on the claim for the performance of property obligations.

Therefore, the provisions of the above family litigation rules apply only to cases where the party claims for the performance of his/her property obligation in the family non-litigation case of Category E, and specifically states the purport of the claim, such as the amount of money, etc., and it does not apply to cases where the party seeks the performance of his/her property obligation without specifying the purport of the claim,

This case is a family non-litigation case of Article 2(1)(b)(2) and 5 of the Family Litigation Act with respect to the father who voluntarily recognized the principal of the case. As such, the family court may decide ex officio on the burden of fostering expenses not explicitly claimed among “matters concerning child rearing” under Article 837(2) of the Civil Act, whether to exercise visitation right and its method, and as long as the claimant did not claim the amount of child support, there is no room to apply Article 93(2) of the Family Litigation Rule.

Therefore, even though the court below's ex officio determination of the burden of fostering expenses, the exercise of visitation right, and the method thereof, it is not appropriate to be based on Articles 843 and 837 of the Civil Code, but there is no violation of Article 93 (2) of the Family Litigation Rules.

2. As to the mistake of facts, incomplete hearing, and argument against the rules of evidence

According to the records, the court below's decision that the designation of the parent of the principal of the case as the person with parental authority and the guardian is reasonable for the welfare of the principal of the case is just. There is no error of law such as misunderstanding of facts, incomplete hearing, and violation of the rules of evidence, etc. alleged

3. Conclusion

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

Justices Kim Ji-hyung (Presiding Justice)