In the case of mutual support duty between husband and wife, whether the claim for the past support allowance was made before the claim for performance (negative)

Although the mutual support duty between husband and wife under Article 826(1) of the Civil Code naturally arises when one of the husband and wife needs to be supported by the husband and wife. However, regarding the past support allowance, the person who has received the support can claim the support allowance only for those after the person has failed to perform the support obligation despite the person who has requested the support provider to fulfill the support obligation, and the person who has the support obligor cannot claim the payment of the support allowance before receiving the claim for the fulfillment of the support obligation is consistent with the nature of the support obligation or the concept of equity.

Article 826(1) of the Civil Act

Supreme Court Decision 90Meu781, 798 delivered on October 8, 1991 (Gong1991, 2717) Supreme Court Decision 91Meu375 delivered on November 26, 1991 (Counterclaim) (Gong1992, 302)

Claimant

Other Party

Seoul Family Court Order 2005B3 dated May 26, 2005

All reappeals are dismissed. The costs of reappeals are borne by each party.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the filing period).

1. As to the first ground for reappeal of the appellant and second ground for reappeal of the other party

Examining the reasoning of the order of the court below in light of the records, the court below's decision that the other party should pay the amount of support fees to the claimant in consideration of all the circumstances as stated in its holding is just and acceptable. Contrary to the allegations in the grounds of reappeal, there is no error of law such as violation of the rules of evidence, incomplete hearing, violation of the principle of pleading, the liability

2. As to the second ground for reappeal by the appellant

Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when either spouse needs to be supported by the husband and wife, barring any special circumstance, the person to be supported can claim the payment of the support allowance only for the case after the person to be supported fails to perform the support duty despite having requested the person to be supported to perform the support duty, and the person to be supported cannot claim the payment of the support allowance before receiving the claim for the performance of the support duty is consistent with the nature of the support duty or the concept of equity (see Supreme Court Decisions 90Meu781, 798, Oct. 8, 1991; 91Meu375, Nov. 26, 1991; 91Meu382, Nov. 26, 1991).

According to the reasoning of the order of the court below, the court below found that the claimant did not separately file a request for support prior to the filing of the appeal in this case, and ordered the other party to pay only the support fees from the day after a duplicate of the appeal in this case was delivered to the other party. Thus, the part of the ground of reappeal disputing the selection of evidence and the finding of facts belonging to the whole right of the court below cannot be accepted, and in light of the above legal principles and records, unless there are special circumstances where the claimant should pay the support fees corresponding to the period prior to the appeal in this case to the other party, the court below's above judgment is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the scope of the obligation to pay support

3. As to the grounds of reappeal Nos. 3 and 4 of the claimant and the grounds of reappeal No. 1 of the other party

According to the reasoning of the court below's decision, it is reasonable to view that the separation between the claimant and the other party was promoted mainly for the reason of the other party's responsibility, and contrary to the other party's request for the remaining living without any justifiable reason, there is no evidence to deem that the applicant refuses the living without any justifiable reason. In addition, as long as the court below judged as above, there is no violation of the rules of evidence, such as the other party's allegations in the grounds for reappeal, it does not affect the conclusion of the judgment even if the court below determined that this part of the judgment was not the other party's assertion. Further, the facts as to the progress of the claim for nullity of the previous marriage which had been between the claimant and the other party did not affect the original judgment, and therefore, the argument disputing the fact

4. Conclusion

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

Justices Park Si-hwan (Presiding Justice)