[1] Where only one parent raises a child, whether only one parent can claim reimbursement of the past child support (affirmative in principle)

[2] Criteria for determining the scope of apportionment of the past child support

[3] Whether the extinctive prescription is run before the claim for payment of child support becomes final and conclusive by a party’s consultation or a family court’s adjudication (negative)

[1] In a case where only one of the parents raises a child due to any cause, barring special circumstances, such as where the rearing of the child by one of the parents is the unilateral and effective purpose or motive of the rearer, or does not assist the other party in the interests of the child, or imposing the child support on the other party rather than is contrary to equity, one of the rearing parents may claim against the other party the appropriate amount of the child support at present and in the future, and the parent's obligation to rear the child arises simultaneously with the birth of the child, barring special circumstances, and thus, it is deemed appropriate that the other party should share the child support in the past, the other party may also claim reimbursement of the expenses.

[2] When one parent bears all the past child support before filing a claim for child support, the other party is excessively harsh and may be contrary to the principle of good faith or equity. In such a case, it does not necessarily require that one parent set forth in the same criteria as the child support after filing a claim for performance. In such a case, whether and when one parent becomes aware of the obligation to support, whether and when the other parent becomes aware of the obligation to support, whether it is an ordinary living expense required for fostering or a large amount of expenses required for fostering, and whether it is a special expense (treatment cost, etc.) of the other party's property condition, economic ability and burden, etc., which are considered appropriate and appropriate.

[3] In a case where a person outside a marriage is recognized, the right to claim the payment of child support for the child is merely an abstract claim that "the other party has the right to claim the share of child support against the other party" before the contents and scope of the specific claim are determined by an agreement between the parties or by a family court, and a right to claim the payment of the amount in a specific amount only by an agreement between the parties or a family court which determines the scope of the pertinent child support in discretion and form. The same applies to the right to claim the future child support as well as the right to claim the child support in a past. Therefore, the right to claim the child support cannot be deemed to be in a state that can be exercised before the specific contents and scope of the claim are determined by an agreement between the parties or by a family court. Thus, the statute

[1] Article 837 of the Civil Act / [2] Article 837 of the Civil Act / [3] Articles 162, 166, and 837 of the Civil Act

[1] [2] Supreme Court en banc Order 92S21 dated May 13, 1994 (Gong1994Sang, 1693)

Plaintiff

Defendant (Law Firm Newyang, Attorneys Park Dong-op et al., Counsel for defendant-appellant)

Seoul Family Court Decision 2006Ra96337 decided January 17, 2008

April 25, 2008

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay 72,00,000 won to the plaintiff jointly with the court of first instance at the rate of 20% per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against that part is dismissed.

1. Facts of recognition;

A. A. Around February 1983, the Plaintiff returned to the Defendant and caused her pregnancy by establishing a sex relationship, but the Defendant cut down the relationship with the Plaintiff and got married with another woman.

B. On December 31, 1983, the Plaintiff gave birth to the joint Plaintiff at the first instance trial, but the Defendant did not take responsibility for raising children. The Plaintiff, without marriage, served as a cosmetics seller, department store sales employee, insurance solicitor of an insurance company, and raises the joint Plaintiff at the first instance trial alone while serving as an insurance solicitor of an insurance company.

C. During that period, when the joint plaintiff of the first instance court was at the age of entering a kindergarten, the plaintiff requested the defendant to arrange the family register by posting a phone, but the defendant refused to do so. Accordingly, on December 28, 1988, the plaintiff left the first instance court's joint plaintiff to the non-party's family register, who is a pro-Japanese.

D. The comparative probability between the joint plaintiff of the first instance court and the defendant's child support for the joint plaintiff of the first instance court is 99.99992%, and the defendant did not fully pay the child support for the joint plaintiff of the first instance court after the birth of the joint plaintiff of the first instance court.

E. The defendant had worked for the Industrial Bank of Korea from June 28, 1983 to September 10, 207. The annual salary for the past 1,712,298, 3,500 won for 3,976, 46,700 won for 1986, 207, 2963, 296, 246, 97, 197, 297, 297, 297, 306, 296, 197, 198, 205, 207, 306, 297, 296, 296, 306, 246, 197, 197, 1992, 108, 197, 194, 197, 194, 197, 294, 297, 297, 197

F. Meanwhile, on the other hand, the Plaintiff was under a cancer diagnosis on around 2005, and was subject to a self-fashion surgery, and there is no special occupation, and it is extremely difficult for the Plaintiff to live.

[Evidence Evidence: Evidence Nos. 1 through 3, evidence Nos. 4 and 6-1, 2, evidence Nos. 7-1 through 4, evidence Nos. 8-1, 2, evidence No. 9, evidence No. 10-1, evidence Nos. 1 through 3, 3, 5, evidence Nos. 7 and 8-1, 2, evidence Nos. 9-1 through 4, respectively, evidence Nos. 9-1 through 10, evidence Nos. 10, evidence Nos. 9-1 through 4, evidence Nos. 10, evidence Nos. 4, and evidence Nos. 6 to the head of the tax office of the first instance, the result of fact-finding on the head of the Gu of the Seoul National University, the result of the fact-finding on the request for genetic test to the head

2. Determination:

A. Determination as to whether an obligation to pay child support exists

In a case where only one of the parents raises a child due to any cause, barring special circumstances, such as where the rearing under one of the parents raises the child, one of the said parents may claim against the other party for the appropriate amount of the child support at present and in the future, and the parent's obligation to rear the child arises simultaneously with the birth of the child, and thus, it is reasonable for the other party to claim reimbursement of the expenses (see Supreme Court en banc Order 92S21 delivered on May 13, 1994, see Supreme Court Order 92S21 delivered on May 13, 1994).

Therefore, the defendant, as the father of the joint plaintiff of the first instance court, is obligated to share the past childcare expenses for the period during which the plaintiff, alone, brought up the joint plaintiff of the first instance court.

B. Determination on the amount of child support

With respect to the amount of child support to be shared by the Defendant, if one parent bears all the past child support before filing a claim for child support, the other party is excessively harsh and may be in violation of the principle of good faith or equity. In such a case, it does not necessarily need to be determined in the same standard as the child support after the request for performance is made. In such a case, whether or not one parent has recognized the obligation to support, whether or not the other party has recognized the obligation to support, whether or not it is the ordinary living expenses required for child care, or the maximum amount of expenses (treatment expenses, etc.), and the scope of sharing deemed appropriate in consideration of various circumstances, such as the property situation of the parties or the equity of economic ability and burden (see the foregoing en banc Decision).

In light of the following circumstances, the above facts, and other circumstances revealed in the pleading process of this case: ① the plaintiff, without marriage, raises the joint plaintiff in the first instance court alone from the birth of the plaintiff to the age of majority; ② the defendant refused the plaintiff's request and did not provide any assistance with respect to the joint rearing of the plaintiff in the first instance court; ② the plaintiff, while bringing up the joint plaintiff in the first instance court, would clearly have spent considerable amount of expenses for raising the joint plaintiff in the first instance court, such as school registration fees, educational expenses, clothes, and expenses for purchase of foodstuffs; ③ the defendant's annual salary in the year 2007 exceeds KRW 80,000,000 and has considerable property, such as real estate, etc.; ④ while the plaintiff had difficulty in preparing treatment expenses during cancer treatment; ④ while the defendant, while the defendant, while at the same time, has paid the child support to the plaintiff as a temporary amount of 00,500,0000 won, which resulted in excessive payment of the child support to the plaintiff.

Therefore, the Defendant is liable to pay the Plaintiff KRW 55,00,000 as child support for the past child support for the Plaintiff jointly with the first instance court, and 5% interest rate per annum as stipulated in the Civil Act from the day following the day this judgment became final and conclusive to the day of full payment.

C. Judgment on the defendant's defense of extinctive prescription

Since the defendant should be deemed to have taken three or ten years of extinctive prescription for the plaintiff's claim for child support against the defendant, the part of the child support claim which expired by extinctive prescription is defense.

The right to seek payment of child support between a child born out of wedlock and his/her mother is not an abstract claim that "the other party has the right to claim a share of child support" before the contents and scope of the specific claim are determined by an agreement between the parties or a family court, and a right to claim the amount of the relevant child support only after consultation between the parties or a family court determines the scope of the relevant child support in discretion and form. The same applies to not only the future child support claim but also the past child support claim. Therefore, since it cannot be deemed that the right can be exercised before the contents and scope of the specific claim are determined by an agreement between the parties or by a family court, the statute of limitations should not run. Accordingly, the defendant's objection to the statute of limitations defense is no longer sustainable without any justifiable reason.

3. Conclusion

If so, the plaintiff's claim for child support in the past should be determined as above, and the judgment of the court of first instance is justified, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Ahn Young-ro (Presiding Judge) Kim Jong-young