2014Dives 588 Child Support

○○ (1961,000)

Law Firm Clovis, Attorneys Lee Ha-young, Counsel for the plaintiff-appellant

Attorney Han-hee, Kim Jong-hee

○○ (1962, South)

Dolsan (1985 People, South and North)

October 2, 2013

July 13, 2015

1. The other party shall pay 20,000,000 won to the claimant and shall be from the day following the day on which the adjudication of this case is finally binding;

It shall pay 5% interest per annum from the date of full payment.

2. 50% of the trial costs shall be borne by the claimant and the remainder by the other party.

3. Paragraph 1 can be provisionally executed.

The other party shall pay 42,00,000 won to the claimant for the past child support of the principal of this case and 20% interest per annum from the day following the day of delivery of a copy of the request for the judgment of this case to the day of full payment.

1. Facts of recognition;

According to the records of this case, the following facts are recognized.

A. On December 19, 1984, the claimant reported the marriage with the other party and gave birth to the principal of the case.B. On December 16, 2003, the claimant filed a lawsuit against the other party for divorce, etc. (hereinafter referred to as "related divorce case").

In addition, from around 1998, the claimant filed a claim for the divorce with the other party and for the designation of the claimant as a person with parental authority over the principal of the case. In addition, since around 1998, the claimant had all of the child support, such as high school tuition, while raising the principal of the case, but the principal of the case was admitted to the university, and thus, he requested for a change in the registration fee, but the applicant was refused to pay the above registration fee.

C. On April 30, 2004, at the relevant divorce case between the claimant and the other party, the claimant and the other party have been divorced, and the claimant have withdrawn the remaining claims.

On June 28, 2004, the claimant reported to the purport that he should designate the other party as a person with parental authority over the principal of the case.

D. The other party did not pay the applicant’s living expenses during the marriage period, and the claimant was an employee of the restaurant from around 1998 to the adult. The income earned from the principal of the case from around 1998 was appropriated for the child support and living expenses of the principal of the case.

Before and after the divorce with the claimant, the other party transferred the original city, Goyang-si and Seoul Metropolitan Government, prevented him from living without certain income and maintained his livelihood, and recently, he moved his workplace to Jeju Special Self-Governing Province, the Seoul Special Metropolitan City, and Gyeong-do.

D. On October 2, 2013, the principal of the case filed a lawsuit against the heir (the petitioner and the other party) of the principal of the case, who died on October 2, 2013 and received part of the death insurance, and there is a dispute over the part of the insurance amount requiring the death due to an accident, and the claimant, etc. filed a lawsuit against the K non-life insurance company against the K non-life insurance company, etc., and the lawsuit is pending (the other party received part of the death insurance amount of the principal of the case and the claimant can receive the additional death insurance amount in the case of winning the lawsuit with the insurance company).

2. Determination

A. According to the above facts of recognition, as the father of the principal of this case, the other party is obligated to pay the applicant with the fostering expenses of the principal of this case.

B. As to this, the other party asserts that the claimant did not claim the payment of the child support of the principal of the case in the relevant divorce case, and that even if it is assumed that the claimant claimed the payment of the child support, it has been constituted a protocol to waive it.

In light of the above facts, even though the claimant filed a claim for the payment of the child support equivalent to the registration fee at the university of the principal of the case in the relevant divorce case, the conciliation was concluded to the effect that on April 30, 2004, the claimant renounced the rest of the Cheong-gu, other than the claim for divorce. Therefore, it is reasonable to view that the claimant determined the matters concerning the child support for the purpose of not claiming the child support of the principal of the case through the conciliation between the other party and the other party.

However, under the premise that the parties did not consult on matters concerning fostering a child, the court is seeking an adjudication on the burden of child support to the extent that the respondent bears the child support, but it is deemed that an agreement has already been reached between the claimant and the other party to the effect that the claimant bears the child support, the above request should be deemed to have sought an alteration of the part of the child support burden among the matters concerning fostering the person (child) as determined by the agreement between the parties (see Supreme Court Decision 90Meu699, Jun. 25, 1991).

In addition, in cases where a party requests a court to change the matter after determining the matters concerning the fostering of his/her child through conciliation, the court may change the matters provided for in the conciliation clause at any time in light of the overall circumstances provided for in Article 837(2) of the Civil Act, and it does not allow a change only when there is any special change in circumstances after the conciliation is established (see, e.g., Supreme Court Order 2005S18, 19, Apr. 17, 2006). This legal principle equally applies to child support in the past (see, e.g., Supreme Court en banc Order 92S21, May 13, 1994).

In the case of this case, the claimant filed a claim for adjudication of this case on the premise that the matters concerning the rearing of the principal of this case had not been discussed with the other party, but agreed with the purport of not claiming the child support of the principal of this case in the mediation procedure of the related divorce case as seen earlier, the claim for adjudication of this case should be viewed to the purport of seeking the change of the part of the child support, and the other party cannot properly pay the living expenses to the claimant without any specific occupation, from around 198, the claimant was dismissed from around 1998, and the applicant raised the principal of this case alone from around that time. The claimant demanded the other party to provide the support for the registration fees of the university of this case to the other party with the entrance of the university of this case, but the related divorce case was brought against the other party who had no changing occupation. The claimant is deemed to have been divorced with the intention of arranging the marriage relationship which is merely a mere mere nominal marriage rather than receiving the registration fees from the other party with no changing occupation, and the other party can be seen as having received a certain amount of the plaintiff's death and the other party of this case.

Therefore, the above argument of the other party cannot be accepted.

C. Next, the other party asserts that the claim for child support by the claimant was invalidated.

On the other hand, as seen earlier, the claim of this case can be seen as a claim seeking modification of the disposition on both land already determined by conciliation in the relevant divorce case, and thus, the other party’s claim, which is based on the premise that the claimant seeks child support, is not accepted in this respect with priority.

Furthermore, even though the claimant filed a petition for the instant judgment on July 18, 2014 after ten years from the date conciliation was completed in the relevant divorce case, the claimant did not impose ten years since June 25, 2005 when the principal of the instant case became adult, and there is no evidence to prove that the claimant did not request the other party to pay the child support for the principal of the instant case, and there is no legitimate trust that the claimant would not request the other party to pay the child support for the principal of the instant case, and thus, the other party’s above assertion cannot be accepted.

D. Furthermore, in full view of the circumstances revealed in the trial process of this case where the claimant brought up the principal of this case, the age of the principal of this case, academic background and past custody situation, the property status of the parties, equity in economic ability and burden of the other party, and the other party is to pay the child support in lump sum to the claimant according to the instant trial. The other party has already received part of the amount of the death insurance for the principal of this case, the petitioner has already made a request for the instant trial, the circumstances revealed in the process of the hearing in this case, and the part to be borne by the other party out of the child support of the principal of this case, it is reasonable to determine the child support of the principal of this case from 1998 to June 25, 2005, when the claimant started bringing up the principal of this case due to negligence, to 20 million won.

Therefore, the other party is obligated to pay 20,000,000 won with the child support of the principal of the case and 5% per annum under the Civil Act from the day following the day when the judgment of this case is finalized to the day of complete payment.

3. Conclusion

Thus, the claim for the payment of the child support of this case shall be judged as above and judged as per the disposition.

July 13, 2015

Transferability