Claimant (Law Firm Inulul, Attorney Lee Hy-young, Counsel for plaintiff-appellant)

Other party (Law Firm Daegu General Law Office, Attorneys Gyeong-chan et al., Counsel for the plaintiff-appellant)

Principal of the case

1. The requester shall be designated as the custodian of the case;

2.The other party is out of the past support fees to the claimant;

(a) 3.5 million won and 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of full payment, as the support fees of the claimant; and

B. It shall pay 14 million won in the name of the principal of the case and 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of full payment.

3.The other party will be paid to the claimant in the future;

(a) From February 28, 2013 to the end of each month the 500,000 won per month shall be paid from February 28, 2013 to the end of the separation of the applicant and the other party or the marriage relationship;

B. To pay 200,000 won a month from February 28, 2013 to December 27, 2015 as the child support for the principal of the case at the end of each month.

4. The claimant's remaining claims are dismissed.

5. The cost of a trial shall be borne by each person.

6. Paragraphs 2 and 3 of this Article may be provisionally executed.

The order of Paragraph 1 and the other party shall pay 12,00,000 won per month to the claimant from May 2012 to the time when the state of separation between the claimant and the other party is resolved as the excessive refusal fee for the petitioner and the principal of the case, from the 25th day of each month.

1. Facts of recognition;

In full view of the records and the overall purport of the examination of the case, the following facts can be acknowledged.

A. The claimant and the other party are legally married couple who completed the marriage report on March 3, 1992, and they had Nonparty 1 (date of birth 1 omitted) and the principal of the case (date of birth 2 omitted) among them.

B. The claimant suffered conflict with the other party in terms of child education issues, etc. during marriage with the other party as follows.

1) The education heat for the children of the claimant was sufficiently strong to the other party.

2) Although the claimant and the other party did not agree with each other as a matter of sending children Nonparty 1 to U.S. study, they eventually agreed to the other party who opposed to Nonparty 1’s study.

3) The claimant spent a considerable amount of educational expenses for children, and paid approximately KRW 100,000 per annum to Nonparty 1’s school expenses and living expenses for Nonparty 1 who is studying in the U.S., and paid at least KRW 4 million per month to the principal of the case, and the other party demanded to reduce the disbursement of educational expenses for children on the ground that the other party is economically liable, but the claimant did not comply with the purport of the other party.

4) The claimant also sent the case principal to the U.S. and tried to go to the U.S. for himself, but the other party opposed to his economic reasons. Nevertheless, the claimant continued to proceed to study the principal principal in the U.S. and went to study in the U.S. on or around June 2010. The claimant also stayed in the U.S. for a certain period of time from around that time to May 201, and repeated the applicant's stay in the U.S. for a certain period of time, such as staying in the U.S., and repeated the applicant's living expenses, study expenses, air charges, etc.

5) Although the other party fully subsidized the total amount of expenses incurred in studying abroad by Nonparty 1, the other party did not provide the principal of the case who promoted study abroad in the United States despite his opposition, the other party did not provide the expenses incurred in studying abroad and the cost of living.

C. On February 2009, when there was a conflict between the claimant and his/her lineal ascendant with the above content, the other party began to go separately from the claimant. On October 20, 2009, the other party filed a lawsuit of divorce and division of property against the claimant, etc. On August 11, 201, the said court rendered a ruling dismissing the other party’s claim for divorce on August 11, 201, on the grounds that “It is difficult to deem that the other party or his/her lineal ascendant has received unfair treatment from the claimant, and that the other party’s marital relationship with the claimant has broken down, it is difficult to deem that the other party’s claim for divorce has broken down.” Although the other party filed an appeal and appeal against it, all of the appeals were dismissed, the said judgment became final and conclusive on May 31, 2012.

D. Until November 2009, the other party paid approximately KRW 400-5 million per month to the applicant’s living expenses, etc. However, the other party did not pay the applicant’s living expenses or child support up to the date prior to the date of the decision of prior disposition as follows by this court.

E. After the claimant was living separately from the other party on February 2, 2009, the main details of the disposal, withdrawal, and termination of property, such as real estate and financial bonds, which had been held at that time, and the measures asserted by the claimant that the claimant had consumed such property are as listed below (attached Table 1).

1. Life insurance 18,345,176 August 11, 2010, Gap 15-1,24, Eul 1-32, 97,578, 209-4 living expenses of 17-1, 26-1,2, Eul 2, 200, 17-1, 206, 30, 17-1, 206, 17-1, 17-1, 206, 30, 1-43, 67, 206, 20, 30, 206, 20, 10, 1-4, 1-1, 206, 20, 206, 30, 20, 206, 30, 16, 20, 20, 21-1, 15, 206, 206, 20

F. The other party's parents were residing in Seo-gu, Gyeong-gu (Attached Nos. 3 and 6) that the claimant and the other party's husband and wife acquired in June 2007 under the name of the claimant, but the other party's parents became a director at the above residence in the wind that the said apartment was disposed of by auction because the claimant failed to pay the loan interest rate properly, and thus, the other party's parents became more closely related to the appraisal between the claimant and the other party.

(g) 1) The details of the other party’s major property as of the date are as set out below [Attachment 2] and Note 2].

The value (units: 20,00,000,00 - 420,000 - 1,000 - 2) - 3-1,4 (ju 3), and 273,125,00 - 3-2,3,5,66,17, 183 - 183 - 20,00 - 364, 207 - 20,07 - 30,00 - 130,00 - 47 - 40,00 - 25 - 130,00 - 254 - 130,000 - 130,000 - 130,000 - 40,000 - 130,000 - 125,000 - 1636,2781,274,2716

Note 3) B 3-1,4

2) The other party is in partnership with Nonparty 2 and two members. The annual income (1/2 equity) of the other party calculated on the basis of the amount of income in 2009, 2010, and 201 reported to the tax authority by the tax authority is KRW 191 million in the year 2009, KRW 184 million in the year 201, KRW 185 million in the year 201 and KRW 185 million in the year 2011.

H. At present, the claimant has no particular occupation or income, and there is no property owned as it is among the property in [Attachment 1] above.

I. As to the instant request for adjudication on November 30, 2012, the instant court ordered that “the other party shall pay 2.5 million won per month to the applicant for support fees and child support from December 2012 to the date when the instant adjudication between the applicant and the other party becomes final and conclusive,” and accordingly, the other party paid each of the above money to the applicant for December 2012 and January 2013.

2. Summary of the parties’ assertion

A. On April 20, 2012, the claimant filed the instant appeal, and sought to designate a custodian of the principal of the case studying in the United States as the applicant. On the other hand, the claimant claimed that the sum of the principal’s private teaching institute cost, study cost, and living cost of the principal of the case and the applicant’s living cost from around December 2009, which was separate from the other party, reaches KRW 252,358,981. The claimant claimed that the other party would pay the above amount to the applicant as support fee in the past and pay KRW 12,00,000 per month as the future support fee of the principal of the case so that the U.S. study of the principal of the case can be maintained in the future.

B. As to this, the other party did not have any particular opinion as to designating the custodian of the principal of this case as the applicant, but the claimant unilaterally proceeded to study the principal of this case despite his opposition, and the claimant was reasonable in his name at the time of the separate and divorce lawsuit, and the other party's economic situation is sufficiently sufficient to cover the expenses incurred to study the principal of this case, and the claimant cannot respond to the above claim for support fees.

3. Judgment on the request for designation of the principal of the case as the custodian

In light of all the circumstances, including the intent of the claimant and the other party, and the overall purport of the record and examination of this case, it is recognized that designating the person fostering the principal of this case as the claimant is beneficial to the welfare of the principal of this case. Thus, the claimant's claim for this part of this case is justified.

4. Determination on the claimant's claim for support allowance

A. The part on the day before the service date of the duplicate of the instant request for trial ( May 23, 2012)

Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when one of the husband and wife needs to be supported by the husband and wife, in relation to the past support allowance, only a person who has been supported may claim for support allowance only after the person has failed to perform the support duty despite the person who has requested the support duty to the person who has been under duty to support, and the person under duty to support cannot claim the payment of support allowance before receiving a claim for the performance of the support duty, is consistent with the nature of the support duty or with the concept of equity (see Supreme Court Order 2005S50, Jun. 12, 2008, etc.).

In the instant case, it is evident in the record that the instant request for a trial, stating the claimant’s claim for support fees in the past, was served on the other party on May 23, 2012. However, there is no evidence supporting that the claimant previously requested the other party to perform the duty of support, and therefore, the claimant’s claim for this part of the claim is without merit without further review.

B. On and after the date of service of the duplicate of the instant written appeal ( May 23, 2012)

Husband and wife shall live together and support each other and cooperate (Article 826(1) of the Civil Act). In other words, as the spouse of the claimant, the other party has the duty to support the claimant, and the claimant also has the duty to support the other party as the spouse of the other party.

In the instant case, the claimant and the other party have not been accepted in a lawsuit seeking divorce from the time when the case was closed, and only have not made special efforts so that they can still live together with each other or be able to make a smooth decision. The claimant continues studying the principal of the instant case opposite the other party and repeats his visit and sojourn in the United States for a considerable period of time until now. As seen earlier, the claimant spent the principal's living expenses, study expenses, etc. during the divorce proceeding with the other party. As seen above, the above 284 million won in total, real estate in the name of the claimant and the other party, financial assets, etc. equivalent to 20,000 won in daily living expenses of the applicant and the other party are determined as property which belongs to the applicant and the other party's joint efforts during the marriage period of the applicant and the other party's 20th day of each of the instant case's life period, regardless of their names, and is judged as property which can be evaluated as belonging to the applicant and the other party's living expenses of the other party.

Therefore, the other party shall pay to the petitioner ① KRW 3.5 million (i.e., 7 months from May 31, 2012 to November 30, 2012) and damages for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from the day following the day when the adjudication of this case is finalized to the day when full payment is made. ② From February 28, 2013, which is after the date of the adjudication of this case, to the day when the claimant and the other party are separated from the date of the adjudication of this case, and the other party are liable to pay KRW 50,000 per annum on the last day of each month.

5. Judgment on the claim for the support allowance of the principal of the case

A. The part on the day before the service date of the duplicate of the instant request for trial ( May 23, 2012)

살피건대, 통상적 수준의 자녀 교육비나 과외비 등은 당연히 자녀 양육비 명목의 부양료 부담 범위에 반영함이 상당하나, 이 사건과 같이 청구인이 상대방의 반대에도 불구하고 별거와 이혼 소송 계속 중에 일방적으로 자녀의 미국 유학을 추진한 경우에는 그로 인하여 발생한 비용이 청구인 주장과 같이 약 2억 5,000만 원을 훌쩍 뛰어 넘는 막대한 금액이라고 하더라도 이를 반대한 상대방에게 모두 부담하라고 할 수는 없다고 봄이 상당한 점, 특히 이 사건의 경우는 앞서 본 바와 같이 청구인이 상대방과의 혼인생활 중에 공동의 노력으로 형성·유지한 재산으로서, 그 명의에 상관없이 실질적으로 청구인과 상대방의 공동재산에 속한다고 평가될 수 있는 재산이 상당 부분 포함된 위 [표1]의 거액의 재산을 청구인이 상대방과 별거한 이후인 2009. 2월경 이후 상대방의 반대에도 불구하고 사건본인의 미국 유학비, 사건본인과 청구인의 미국 생활비 등으로 모두 소진한 사정이 있는 점, 한편, 상대방은 청구인과의 별거 이후에도 그들 사이의 첫째 자녀인 소외 1 유학비용과 미국 생활비 등 일체의 비용을 혼자서 전부 부담해 온 점, 그 밖에 앞서 본 인정사실과 이 사건 심리과정과 기록에 나타난 청구인과 상대방 사이의 별거와 이혼 소송 등 분쟁경과, 청구인이 사건본인을 홀로 양육하게 된 경위, 청구인과 상대방의 재산 및 소득 상황, 사건본인의 나이와 양육상황 등 제반 사정을 종합하여 볼 때, 사건본인에 관하여 위와 같이 지출된 양육비 명목의 과거 부양료에 관하여 상대방에게 그 분담을 명하는 것은 타당하지 않다고 판단된다.

Therefore, this part of the claimant's claim is without merit.

B. On and after the date of service of the duplicate of the instant written appeal ( May 23, 2012)

In full view of all the circumstances indicated in the examination process and records of this case, including the expenses to be shared by the couple and the circumstance that it is difficult for one of the parties to bear the full burden. The child support expenses to be borne by the other party cannot be borne by the other party, the various circumstances mentioned above and the circumstance that the claimant raises the principal of this case alone with the other party, the amount of the child support expected to be borne by the claimant and the other party, the age, occupation, occupation, income and economic ability of the claimant and the other party, the equity of burden incidental thereto, and the age and parenting situation of the principal of this case, etc., it is reasonable to determine the child support expenses to be paid by the other party to the applicant from May 24, 2012 to December 27, 2015, which is the day following the delivery of a copy of the written appeal of this case, and the date of payment as the last day of each month.

Therefore, the other party shall pay to the applicant the amount of KRW 14 million (i.e., 7 months from May 31, 2012 to November 30, 2012) and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the adjudication of this case becomes final to the day when the principal of this case is fully paid, and (ii) from February 28, 2013 to December 27, 2015, after the date of the adjudication of this case, the principal of this case, from February 28, 2013 to December 27, 2015, the day before the date when the principal of this case reaches the majority, each of which shall be paid at the end of each month.

6. Conclusion

If so, the request for designation of the guardian is reasonable, and the claim for support fees is reasonable within the scope of the above recognition, so this part of the claim shall be accepted and judged as ordered by the court.

Judges Lee Young-jin

1) Meanwhile, Nonparty 1 entered the first-year course of a university of the United States around May 2012 and entered the Republic of Korea on July 23, 2012 and is serving as military personnel around July 23, 2012.

Note 2) The claimant asserts to the effect that among the other party's major properties, the other party's 1/2 shares in the other party's 300 million won and 500 million won in the other party's 's 's 's 's 's 's 's 's 's 1/2 shares in the other party's 's 's 's 's 's 's 's 's '

3) As of February 2012, the actual market price of apartments by the Ministry of Land, Transport and Maritime Affairs.

4) See the evidence Nos. 3-23, 24, and 9-1, and 2 of the evidence Nos. 3-23, 24, and 9-2. The claimant asserts that the other party's import size much larger than the amount of the other party's import declaration officially reported as above. However, it is difficult to recognize that the evidence, such as the entries in the evidence Nos. 36 through 39 (including each number), and the result of each order to submit tax information, etc., has considerable amount of additional income omitted from the above reported amount as the claimant's assertion, and there is no other evidence to acknowledge

5) The claimant asserts that, in addition to the above money, the additional cost of KRW 100 million was paid by August 2, 2012, such as the study cost, living cost, and air fee of the principal of the case, until August 2012, the trial of this case is pending.

Note 6) In particular, the period between the delivery of a copy of the instant request for trial after the separation between the claimant and the other party is included in the period during which the other party filed a lawsuit against the claimant, such as the above divorce, is pending.

7) The other party claimed a property division of approximately KRW 188,00,000 against the claimant in a claim suit, such as the previous divorce (Seoul District Court Family Branch Office 2009Ddan26246).

8) As examined below, it is reasonable to determine the child support of the principal of this case in 200,000 won per month. The above two months are excluded in light of the circumstances in which the other party paid 2.5 million won per December 2012 and 2.5 million won per January 2013 to the support fees and child support of the applicant and the principal of this case according to the prior disposition decision related to the instant judgment.

9) As seen earlier, the applicant’s support fee was set at KRW 500,000 per month. According to the prior disposition related to the instant judgment, the Plaintiff’s support fee and KRW 2.5 million per month of December 2012 and KRW 5 million per month of January 2013 are excluded in light of the circumstances in which the other party paid all the claimant’s support fee and child support.