(영문) 대법원 2020.5.14.선고 2019므15302 판결

The part of the original judgment regarding child support shall be reversed, and this part of the case shall be remanded to the Incheon Family Court. The remaining appeal shall be dismissed.

Reasons

The grounds for appeal are determined.

1. Case overview and the main issue

The plaintiff filed a divorce claim against the defendant Eul and filed a claim to designate a person with parental authority and a custodian as the plaintiff and to pay child support. The judgment of the first instance court, upon receiving the plaintiff's divorce claim, designated the plaintiff as the person with parental authority and the mother, who is the father, and recognized the visitation right to the defendant, who is the father (the claim for division of property was partially accepted and the claim for consolation money was dismissed, and this part of the claim is not subject to the judgment of the court of final appeal). The judgment of the court of final appeal changed the visitation right part and the child support part among the judgment of the first instance, and the plaintiff appealed on these two parts, and thus, it is controversial whether the judgment of the court of final appeal is legitimate

2. The court below changed the date, time, place, method, and method of visitation negotiations among the judgment of the court of first instance. The defendant shows a strong intent of fostering the principal of the case as to the time, place, and method of visitation negotiations. The defendant sent a large number of time with the principal of the case, and it is necessary to continue emotional ties with the principal of the case, and if the principal of the case is under the care of the defendant of this case with his age, the principal of the case will grow properly.

In light of relevant legal principles and records, the judgment of the court below is erroneous in misapprehending the legal principles regarding the method of interview negotiation, or exceeding the limit of free evaluation of evidence against logical and empirical rules, or exceeding the limit of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

3. Methods, etc. of managing child support.

A. The judgment of the court below

For the following reasons, the court below ordered the plaintiff and the defendant to pay the child support of KRW 300,000 and KRW 500,000 respectively to the plaintiff and the defendant with the child support of the principal of the case. The plaintiff and the defendant opened a new deposit account under the name of "the plaintiff or the plaintiff English name (the plaintiff's English name omitted)" and issued the physical card connected with them to the above bank account and deposited the child support into the above bank account monthly. The plaintiff paid the child support through the above physical card and notified the defendant of the details of the disbursement and the details of transactions in the deposit account in the bank account with the defendant at the end of each quarter of each quarter. (1) The designation of the plaintiff as the person with parental authority and the child of the principal of the case is consistent with the principal of the case, but the child support is a duty of the parent to prevent the child support regardless of the nature of the parent-child relationship. Thus, both the plaintiff and the defendant must bear the child support in advance as the person with parental authority and the creditor of the case.

The purpose is to open a new deposit account with the name of the principal of the case written in the name of the Plaintiff. (3) The Plaintiff’s deposit balance in the said deposit account is the child support of the principal of the case, only to the expenses incurred in fostering the principal of the case, and to periodically disclose the details thereof to the Defendant, thereby preventing disputes between the Plaintiff and the Defendant due to child support in advance.

B. Supreme Court Decision

However, the lower court’s determination is difficult to accept for the following reasons. (1) Parents are jointly responsible for raising a child, and, in principle, both parents shall bear the expenses for raising the child. However, in cases where only one parent raises a child due to any circumstance, a person raising the child may request the other party to share the appropriate amount of the current and future child support (see, e.g., Supreme Court Order 92S21, May 13, 1994). In so doing, the court’s determination on the determination of a person raising the child and the bearing of the expenses arising from divorce between the Divorce parties should either ex officio or at the request of the parties to the relevant child support (see, e.g., Supreme Court Decision 837, Article 843 of the Civil Act). Determination on the payment of the child support ought to be made to the extent that one parent does not have any specific order for the payment of the child support to the extent that it does not require the other party to ex officio determination on the payment of the child support (see, e.g., Supreme Court Decision 92).

In the judgment of the court below, the court below ordered the plaintiff and the defendant to open a new deposit account (hereinafter referred to as "the bank account of this case") in the name of "the plaintiff or the defendant (the plaintiff's English name omitted)". "the plaintiff and "the plaintiff (the plaintiff's English name omitted)" are the plaintiff's name, and "the case principal" are the case principal's name. However, according to the above order, it is difficult to clearly understand the meaning of the judgment of the court below after examining whether the obligation imposed on the plaintiff and the defendant should be opened in the plaintiff's name, and whether the plaintiff and the defendant should be stated in the name of the principal of this case. In addition, in the case of this case, the person designated as a person with parental authority and the guardian of the principal of this case is the plaintiff, and the defendant has no authority to open the deposit account of this case

The above order of the judgment alone cannot be deemed to have objectively specified the content of the obligation to perform by the Plaintiff and the Defendant, and thus there is room for further dispute between the parties in the future. Therefore, the part of the judgment of the court below in the part of the judgment of the court below is unlawful because it does not have any clarity to meet the order of the judgment. (3) The court below also needs to open a separate account like the order of the judgment of the court below in order to prevent the use of childcare by the rearinger or the compulsory enforcement of childcare by the rearing obligee by the obligee. However, it is not clear whether opening an account under the name of the Plaintiff or an account under the name of the Plaintiff and the instant principal of the case can be a way to effectively prevent the Plaintiff’s use

According to the judgment of the original court, the plaintiff shall notify the defendant of the details of the deposit account of this case each quarter, and it is possible to do so through the payment body card of the child support. Since the custodian of the principal of this case is the plaintiff, the plaintiff has the right and duty to rear the principal of this case in a manner consistent with the welfare of the principal of this case. However, the determination of the method of using the child support as stated in the judgment of the court below is excessively limited to the plaintiff's discretion to rear the principal of this case in a manner consistent with the welfare of the principal of this case. In addition, allowing the plaintiff to periodically disclose the details of the deposit account of this case to the defendant in a situation where the plaintiff and the defendant did not reach an agreement on the specific matters concerning the method of using the child support, rather than preventing disputes between the plaintiff and the

C. Nevertheless, the lower court, while designating the Plaintiff as a person with parental authority and a custodian, ordered the Plaintiff to bear a certain amount of child support and did not meet the clarity that the Plaintiff ought to meet as an order of the judgment.

In the judgment of the court below, the court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misunderstanding the legal principles on the burden of child support, which led to the failure to exhaust all necessary deliberations, and thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out

4. Of the judgment of the court of final appeal, the part concerning the child support among the judgment of the court of final appeal is reversed and remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed as they are without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.