[1] Where either a person with parental authority or one parent designated as a custodian claims the child support to the other party when a judicial divorce is brought, whether the family court should determine only the appropriate amount to be shared by the other party except the child support to be borne by the rearer (affirmative)

[2] Whether a specific degree of the text of the judgment and the order of the judgment are specified are matters to be examined ex officio (affirmative)

[3] In a case where Gap filed a claim for divorce against Eul, etc. for the designation of a person with parental authority and a custodian as Gap, and the court below requested Gap and Eul to pay the child support, and the court below held that the court below erred by failing to meet the clarity of the obligation to perform the obligation with Gap and Eul as the disposition of the judgment on the ground that Gap and Eul were to pay the child support by opening a new deposit account with the name of Byung in the name of a person with parental authority and a custodian Eul, and Gap and Eul were to pay the child support, the judgment below was erroneous in designating Gap as a person with parental authority and a custodian and ordering Gap to pay a certain amount of the child support

[1] In a case where only one parent raises a child due to any circumstance, the parent shall jointly bear the burden of fostering the child, and in principle, the parent shall jointly bear the expenses for fostering the child. However, in a case where only one parent raises the child due to a judicial divorce, the person fostering the child may claim to the other party for an appropriate amount of money out of the present and future child support. When the parties to the divorce fail to reach an agreement on the decision of the person fostering the child and the bearing of the expenses for fostering, or cannot reach an agreement on the said matters, the family court shall determine the pertinent matters either ex officio or upon request of the parties (Articles 837 and 843 of the Civil Act). The adjudication on the disposition of fostering the child shall be requested by one parent to the other (Article 99(1) of the Family Litigation Rule). In full view of these matters, it is reasonable to determine the appropriate amount of money to be borne by the other party except for the child support to be borne by the person fostering the child among the child.

[2] The text of the judgment shall be clear, and the contents of the order shall be specified in its own text. The order shall be clearly specified to the extent that it is clearly indicated to the extent that it is possible to see and reject the parties’ claims within any scope, compared with the reasons therefor, and that it is not doubtful. Whether the text of the judgment has been specified is matters to be ex officio investigation. In the family non-litigation case, the judgment ordering the payment of money, delivery of goods, registration and performance of other obligations is an enforcement title (Article 41 of the Family Litigation Act). Accordingly, the judgment ordering the payment of child support or the performance of obligations related to the use of child support, etc. should be clearly stated in order to avoid any doubt

[3] In a case where Gap filed a divorce claim against Eul, and the person with parental authority and the custodian Eul were designated as Gap and the child support. The court below did not have authority to open the above deposit account for Byung's child support, and Gap and Eul did not have authority to pay a certain amount of the child support for Byung's child care, and Gap and Eul deposited the child support by opening a new deposit account with the name of Byung's person with parental authority and the career Gap's name, the court held that the judgment below erred in designating Gap as the person with parental authority and career and ordering Gap to pay a certain amount of the child support, and in light of the above order, the court below's decision did not err in ordering Gap to pay a certain amount of the child support for Gap's person with parental authority and career Eul, and it is hard to clearly understand the meaning of Gap's obligation imposed upon Gap and Eul to open the joint name account for Byung's person with parental authority and career Eul, and the above judgment does not have authority to establish the above deposit account for Byung's child support for children.

[1] Articles 837 and 843 of the Civil Act, Article 99(1) of the Rules on Family Litigation / [2] Articles 134 and 208 of the Civil Procedure Act, Article 41 of the Family Litigation Act / [3] Articles 837 and 843 of the Civil Act, Articles 134 and 208 of the Civil Procedure Act, Article 41 of the Family Litigation Act, Article 99(1) of the Rules on Family Litigation

[1] Supreme Court en banc Order 92S21 dated May 13, 1994 (Gong1994Sang, 1693) / [2] Supreme Court Decision 2017Da233849 Decided March 14, 2019

Plaintiff (English name omitted) (Law Firm Hyan, Attorney Shin Dong-ho, Counsel for the plaintiff-appellant)

Defendant (Law Firm Uniform, Attorney Choi Sung-jin, Counsel for defendant-appellant)

Principal of the case

Incheon Family Court Decision 2018Reu12146 decided September 27, 2019

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

The grounds of appeal are examined.

1. Case overview and key issue

The Plaintiff filed a claim for divorce against the Defendant to designate a person with parental authority and a custodian as the Plaintiff and to pay child support. The first instance judgment, upon receiving the Plaintiff’s claim for divorce, designated the Plaintiff as a person with parental authority and a custodian of the principal of the case, who is a child, and recognized the visitation right to the Defendant, his father (the claim for division of property partially accepted and the claim for consolation money was dismissed, and this part is not subject to final appeal judgment). The lower judgment changed the visitation right and child support part of the first instance judgment, and the Plaintiff appealed on these two parts, and thus, the issue is whether the lower judgment

2. Date, time, place and method of visitation right;

Of the judgment of the court of first instance, when changing the date, time, place, and method of visitation, the defendant shows a strong intent to rear the principal of the case, and it is necessary to continue the relationship between the principal of the case and emotional ties by sending a large number of time with the principal of the case, and if the principal of the case is received from the defendant through a care of petry from the defendant, it seems that the principal of the case will be able to properly grow, and the age and development of the principal of the case, living environment, and parenting situation, etc. are considered comprehensively.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the method of visitation right, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Methods, etc. for paying child support.

A. The judgment of the court below

For the following reasons, the court below ordered the plaintiff and the defendant to bear the child support of KRW 300,000 and KRW 500,000 respectively with the child support of the principal of the case, and ordered the plaintiff and the defendant to open a new deposit account in the name of "(name omitted in the plaintiff's national name) or "(name omitted in the plaintiff's English name omitted) (the plaintiff's name omitted) (the plaintiff's name omitted)" to issue the physical card connected thereto and deposit the child support monthly in the above deposit account. The plaintiff paid the child support through the above physical card and ordered the defendant to notify the defendant of the details

(1) Designation of the Plaintiff as a person with parental authority and a custodian of the principal of the case is consistent with the welfare of the principal of the case. However, in principle, the expenses for bringing up a child shall be jointly borne by the parents, and this is a duty arising from the nature of the parent-child relationship regardless of who is the parent among the parents, and thus both the Plaintiff and the Defendant should share a certain amount of child support according to their income and property status

(2) Since it is necessary to transparently manage the child support in order to use the child support for the custodian and prevent the Plaintiff’s prior enforcement by the obligee, opening a new deposit account with the name of the principal of the case together in the name of the person with parental authority and the Plaintiff designated as the custodian.

(3) The Plaintiff may prevent disputes between the Plaintiff and the Defendant arising from child support in advance by ordering that the balance of the deposit in the said deposit account is the child support of the principal of the case and paying it only to the expenses incurred in fostering the principal of the case, and regularly disclosing the details thereof to the Defendant.

B. Supreme Court Decision

However, the lower judgment is difficult to accept for the following reasons.

(1) The parents are jointly responsible for raising a child and, in principle, the parents shall jointly bear the expenses incurred in fostering the child. However, in a case where only one parent raises a child due to any circumstance, the person fostering the child may claim to the other party for the appropriate amount of the present and future child support (see Supreme Court en banc Order 92S21, May 13, 1994). In a case where the parties to the divorce fail to reach an agreement on the determination of the custodian and the bearing of the child support between the parties to the divorce, or cannot reach an agreement on the burden of the child support, the Family Court shall determine the pertinent matter either ex officio or upon the party’s request (Articles 837 and 843 of the Civil Act). The adjudication on the disposition of fostering the child shall be brought to the other parent (Article 99(1) of the Family Litigation Rule). In full view of these matters, one parent designated as the person with parental authority and the child support at the time of judicial divorce is entitled to claim the child support to the other party, and in such case, the family court should have to bear the child support.

(2) The text of the judgment must be clear and the contents of the order itself must be specified. The order must be clearly specified to the extent that it is clearly indicated and its execution is not doubtful to the extent that it accords with the relevant reasons. Whether the order has been specified or not is an ex officio matter (see Supreme Court Decision 2017Da233849, Mar. 14, 2019). An adjudication ordering the payment of money, delivery of goods, registration, and performance of other obligations in a non-litigation case is an enforcement title (Article 41 of the Family Litigation Act). Accordingly, the order should be clearly stated in order to ensure that the execution of adjudication ordering the payment of child support or the performance of obligations in relation to the use, etc. of child support remains a matter of execution, and thus, the order should be clearly stated so as not to cause any doubt.

In the judgment of the court below, the court below ordered the plaintiff and the defendant to open a new deposit account (hereinafter "the bank account of this case") under the name of "(name omitted of the plaintiff)" or "(name omitted of the plaintiff) (name omitted of the plaintiff)" and "(name omitted of the plaintiff)" are the plaintiff's name and "(name omitted of the plaintiff)" are the name of the principal of this case. However, according to the above order, the court below's reasons are examined as to whether the plaintiff and the defendant are obliged to open an account under the name of the plaintiff and the defendant and to make an additional entry of the name of the principal of this case and to open an account of the principal of this case. In addition, in this case, since the person designated as a person with parental authority and the guardian of the principal of this case are the plaintiff, the defendant is not authorized to open the bank account of this case.

The above order of the judgment alone cannot be deemed to have objectively specified the content of the obligation to be performed 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 is unlawful because it does not lack clarity that should be

(3) The lower court needs to establish a separate account as indicated in the order of the lower judgment in order to prevent the diversion of the use of the child support by a custodian or the compulsory execution of the child support by a custodian’s creditor. However, it is not clear whether opening of an account in the name of the Plaintiff or an account in the name of the Plaintiff and the principal of the case can be an effective method of preventing the Plaintiff’s use of the child support or the Plaintiff’

According to the judgment of the court below, the plaintiff shall notify the defendant of the details of the deposit account of this case every quarter, and the disbursement of the child support is possible only through the physical card. Since the plaintiff is the custodian of the principal of this case, the plaintiff has the right and duty to rear the principal of this case in the direction consistent with the welfare of the principal of this case. However, the determination of the method of using the child support, like 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 without agreement between the plaintiff and the defendant with regard to the detailed matters concerning the method of using

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 failed to meet the clarity to meet the text of the judgment. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

4. Conclusion

The Plaintiff’s appeal on the part concerning child support among the judgment below is with merit, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed as they are without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)