[1] The meaning of support and cooperation between husband and wife under Article 826 of the Civil Code, and whether the claim for living expenses under Article 833 of the Civil Code can be deemed as a claim based on a separate claim that is irrelevant to Article 826 of the Civil Code (negative)

[2] Where a person can claim the payment of support fees in the past, and whether a person under duty to support can claim the payment of support fees before receiving a claim for the performance of the duty to support (negative)

[1] The main text of Article 826(1) of the Civil Act provides that “The father shall live together, and shall provide support and cooperation among the parties.” Article 833 of the Civil Act provides that “The expenses necessary for the communal living of father and wife shall be borne jointly by the husband and wife, except as otherwise agreed between the parties.” Article 826 of the Civil Act provides that the support and cooperation between husband and wife refers to the maintenance of the other spouse’s livelihood at the same level as the husband and wife maintains one’s own living. In order to maintain a marital life as a communal living including fostering children, division of living expenses is necessary. Article 833 of the Civil Act provides that “The grounds for the duty of support and cooperation between husband and wife are based on the above duty of support and cooperation between husband and wife,” and Article 833 of the Civil Act provides that “A separate basis for the performance of the duty of support and cooperation between husband and wife under Article 826(1)2(e) of the Family Litigation Act shall not be deemed to be a ground for action under Article 8283(3) of the Civil Act’s.

[2] 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. However, in the past, barring any special circumstance, the person to be supported may claim the payment of the support allowance only for those after the person to be supported failed 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. It is consistent with the nature of the support duty or the concept of equity.

[1] Articles 826 and 833 of the Civil Act; Article 2(1)2 of the Family Litigation Act / [2] Articles 826 and 833 of the Civil Act

[2] Supreme Court Order 2005S50 Decided June 12, 2008 (Gong2008Ha, 974) Supreme Court Decision 2011Da96932 Decided December 27, 2012 (Gong2013Sang, 235)

Claimant (Attorney Park Young-chul, Counsel for defendant-appellant)

Other party (Law Firm Daegu, Attorneys Park Jin-jin et al., Counsel for the plaintiff-appellant)

Principal of the case

Daegu Family Court Order 2013BB34 dated December 19, 2013

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

The main text of Article 826(1) of the Civil Act provides that “A father and wife shall live together, and shall provide support and cooperation among the parties.” Article 833 of the Civil Act provides that “A father and wife shall jointly bear expenses incurred for a father’s community life, except as otherwise agreed between the parties.” Article 826 of the Civil Act provides that “A husband and wife’s support and cooperation between husband and wife shall be borne by both husband and wife at the same level as the husband and wife maintains one’s own life.” In order for husband and wife to maintain a marital life as a communal living including bringing-up of children, division of living expenses is necessary. Article 833 of the Civil Act provides that “A husband and wife’s grounds for the duty of support and cooperation between husband and wife, and Article 833 of the Civil Act provides a specific standard for the performance of the above duty of support and cooperation.” Article 826(1) provides that “A husband and wife’s support and cooperation between husband and wife under Article 826(1)2(e) of the Family Litigation Act may not be deemed a separate cause for action under Article 836(3) of the aforementioned.

For the reasons indicated in its holding, the lower court determined that, on the grounds indicated in its reasoning, the conjunctive claim for the payment of living expenses from December 1, 2009 to December 27, 2014, against the other party of the re-appellant (hereinafter “Appellant”) and the conjunctive claim for the payment of the cost of support from December 27, 2014 to December 27, 2014, is essentially the same cause of claim, and the amount of calculation is nothing more than the same cause of claim, and thus, it does not constitute a separate claim. Furthermore, the lower court determined that the lower court did not make a separate claim, instead of a preliminary claim, as it modified the first instance decision in lieu of a revocation decision to revoke a part of the first instance decision and dismiss a part of the appeal, the lower court did not accept the claim as the remainder of the petitioner and the other party’s claim for the payment of the cost of support fees by citing the part of the conjunctive claim as “not later than December 27, 2014.”

Examining the aforementioned legal principles and records in light of the relevant legal principles and records, the lower court did not err in its judgment as alleged in the grounds of reappeal.

2. As to the grounds of reappeal Nos. 2 and 4

Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when one side of the husband and wife needs to be supported, barring any special circumstance, the person to be supported may claim the payment of the support allowance only for the case after the person to be supported has failed to perform the support duty despite the person to be supported requested 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, e.g., Supreme Court Decisions 2005S50, Jun. 12, 2008; 201Da96932, Dec. 27, 2012).

For the reasons indicated in its holding, the lower court rejected the part of the support fee claim by May 23, 2012, which is the date of delivery of a copy of the instant written appeal, on the grounds that there is no evidence to prove that the claimant had claimed against the other party the performance of the obligation to support prior to the instant written appeal.

In light of the above legal principles and records, the court below did not err in the misapprehension of legal principles as to living expenses or in violation of the rule of experience as alleged in the grounds of reappeal.

3. As to the grounds of reappeal Nos. 3 and 5

Based on its stated reasoning, the lower court determined the Defendant’s support fee of KRW 500,00 per month from May 24, 2012, as well as the Defendant’s child support fee of KRW 2,00,00 per month from May 24, 2012, taking into account all the circumstances, including the Plaintiff’s age, occupation and income, economic ability, property status, friendship or ties, conflict and cause, and the age and parenting of the principal of the instant case.

In light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence.

4. Conclusion

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

Justices Kim Jae-hyung (Presiding Justice)