Whether a court shall give priority to a father who is to be a person with parental authority in designating a person who is a person who is to have parental authority in accordance with the former Civil Act (amended by Act No. 4199, Jan. 13, 199) (negative)

When a person with parental authority requests a court to determine the matter in the absence of an agreement on fostering a child at the time of divorce, the court may, regardless of whose person is the person with parental authority, designate a person among parents as a person with parental authority or have both parents bear custody, taking into account the child’s age, the financial status of his parents, and all other circumstances. In this case, matters to be first considered are not parents’ rights, but parents’ welfare, and thus, in a case where a couple is divorced under the former Civil Act (amended by Act No. 4199 of Jan. 13, 191), the circumstance that only the father becomes a person with parental authority may be one of the circumstances that may be considered in determining a person with parental authority, but in selecting a person with parental authority cannot be said to be a ground for giving a priority to his father.

Article 36(1) of the Constitution of the Republic of Korea; Articles 837 and 909(5) of the former Civil Act (amended by Act No. 4199 of January 13, 199)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law No. 1986, Jun. 635, 1986)

Claimant

[Defendant-Appellant] Plaintiff 1 and 1 other

Busan High Court Decision 89Reu549,89Reu108 delivered on July 20, 1990

The part of the judgment of the court below concerning the designation of the appellee and the claim for child support shall be reversed, and the case shall be remanded to Busan High Court.

The respondent's remaining appeals are dismissed.

The costs of appeal against the dismissal of an appeal shall be assessed against the defendant.

The grounds of appeal are examined.

1. As to the claim part of consolation money

In light of the records, the court below's calculation of consolation money is proper and it cannot be said that there is an error of law such as incomplete hearing, in full view of the circumstances leading to the failure of the marriage of this case which the court below legitimately admitted, and all other circumstances presented by the court below. The arguments are without merit.

2. As to the part concerning a disposition regarding fostering a child

According to the reasoning of the judgment of the court below, the court below dismissed the defendant's claim for divorce with the defendant (only the defendant shall be called the defendant) (only the defendant) and accepted part of the claim for divorce and part of the claim for consolation money among the defendant's counterclaims, and ordered divorce between the parties. The defendant shall designate the defendant as the rearing for the minor children of 2 South and North Korean children who have given birth between these spouses, and the claimant shall pay the defendant a certain amount of child support until they reach the age of majority, and there is no evidence supporting the defendant's claim that the defendant's claim that the defendant's child's existence and difficulty toward the claimant's child is lost due to in-depth recognition and in-depthness of the claimant's child, and there is no duty to protect and educate the person with parental authority under the former Civil Act (amended by Act No. 4199, Jan. 13, 190; hereinafter the defendant's child at the time of divorce between the parents; and 16th of this part of this case's claim shall not be designated as the defendant's child.

However, Article 837 of the former Civil Act provides that matters concerning raising a child between divorced parties shall be determined by an agreement between husband and wife, and if such agreement is not reached or cannot be reached, the court shall, at the request of the parties, determine it, and only in the absence of such agreement or the decision of the court, the father shall be responsible for raising the child. The agreement or the decision of the court on raising children shall not affect parental authority or any other parent's rights and duties, except for matters concerning raising children, and therefore, in case of divorce, matters concerning raising children shall be considered separately from the right of father to have parents. The original marriage and family life shall be established and maintained on the basis of the dignity and gender equality of individuals (Article 36(1) of the Constitution of the Republic of Korea), and the equality of raising children in marriage and resolution thereof shall be a guidance ideology that takes overall control over our law, so in determining matters concerning raising children separately from parental authority, the law shall not be interpreted to any father on the ground that only the father becomes a person with parental authority.

When a husband or wife requests a court to determine the matter in the absence of an agreement on fostering a child, the court, regardless of whose person in parental authority is the person in parental authority, may designate one of his or her parents as a custodian or divide the matters of custody into two or more parents, taking into account the child’s age, the status of his or her parents’ property, and all other circumstances. In such a case, the first priority is not the parent’s right, but the child’s welfare. Thus, in a case where a couple is divorced under the former Civil Act, the circumstance that only the father becomes a person in parental authority may be one of the various circumstances to determine the person in parental authority, but such circumstance cannot be said to be a ground for giving a priority to the father in selecting

The precedent of a party member cited by the judgment of the court below is that there is no agreement on fostering between the parties to a divorce and the father, who is a person with parental authority and a primary person in charge of fostering, has the right of fostering, and it is not appropriate for the court to determine the matters concerning fostering at the request of the parties.

Therefore, the lower court should have carefully deliberated on the most desirable for the welfare of the minor and determined the matters concerning the bringing-up of the minor, by taking account of the following circumstances, to raise the minor by any means, from the failure of the family by divorce of this case.

However, the court below rejected the defendant's claim solely with the minor explanation that the parental authority over children is the father of the child and the mother is better than the father's fostering. In this regard, the court below did not err by misapprehending the legal principles on fostering children or failing to exhaust all deliberations, which affected the conclusion of the judgment. The ground for appeal is with merit.

3. Therefore, the part of the judgment of the court below concerning the designation of the appellee and the claim for child support is reversed, and this part of the case is remanded to the court below. The remaining appeal by the appellee is dismissed, and the costs of appeal against the dismissed appeal are assessed against the defendant. It is so decided as per Disposition by the assent

Justices Kim Yong-ju (Presiding Justice)