[1] The elements to be considered when determining the parental authority of a minor among the parents and the custodian in cases where the parents divorce

[2] The judicial validity of an agreement that waives or limits a person's right to claim the change of his/her relative within the fourth degree of relationship (negative)

[1] Articles 837 and 909 of the Civil Act / [2] Articles 103 and 909 (6) of the Civil Act

[1] Supreme Court Decision 201Meu4719 Decided April 13, 2012 (Gong2012Sang, 791)

Plaintiff (Law Firm Young-soo, Attorneys Song Sang-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Yong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Na2016744 decided June 2, 2015

The part of the judgment below regarding the claim for the reimbursement of consolation money due to the recovery of parental authority is reversed, and that part of the case is remanded to the

The plaintiff's remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Plaintiff’s ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that the part of the instant agreement, which entirely excludes the Defendant’s visitation right, is null and void as it goes against the good morals and social order under Article 103 of the Civil Act, and that the money given on the ground thereof constitutes illegal consideration, and thus, the Plaintiff

Examining the reasoning of the lower court in light of the relevant legal principles and records, there were some inappropriate parts in its reasoning. However, the lower court did not err in its judgment by misapprehending the legal doctrine on the validity of an agreement restricting visitation rights or illegal consideration, etc. as otherwise stated in the grounds of appeal.

2. As to ground of appeal No. 2 by the Plaintiff

The lower court presumed the portion of the penalty for breach of privacy prohibition clause in the instant agreement as liquidated damages, and deemed that the contractual penalty was unfairly excessive, thereby reducing the penalty in accordance with Article 398 of the Civil Act.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the distinction between liquidated damages and penalty, or by failing to exhaust all necessary deliberations, or omitting judgment, which affected the conclusion of the judgment.

3. As to the Plaintiff’s ground of appeal No. 4

The court below held that even after the divorce, since the plaintiff living with the defendant while paying approximately KRW 287 million to the defendant without any legal obligation, the court below asserted that the defendant offsets his claim against his claim for division of property claimed as offset, but it cannot be accepted on the ground that there is insufficient evidence to prove that the plaintiff paid KRW 287 million without any legal obligation.

Examining the relevant legal principles and records, the lower court did not err in its judgment by failing to exhaust all necessary deliberations without exercising its right of explanation as stated in the grounds of appeal and by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or by omitting judgment, etc., which affected the conclusion of the judgment.

Meanwhile, the allegation that the Defendant’s claim for the payment of the division of property due to the divorce, as the counterclaim, was invalidated due to the living together and the maintenance of support after divorce, or extinguished due to the fulfillment of the condition of rescission, and that the obligation for delay in the payment of the division of property does not occur due to the maintenance of living together and support after divorce, does not constitute a legitimate ground for appeal as a new argument that was made only at the time of the final appeal

4. As to the Defendant’s ground of appeal

A. Parental authority, including fostering a minor, is the parent’s right and duty, which directly affects the welfare of the minor. Therefore, in determining a minor among parents and a minor, the parental authority should be determined in the direction that is most helpful and appropriate for the growth and welfare of the minor, by comprehensively taking into account all the factors such as the sex and age of the minor, parents’ patriotism and intent for fostering the minor, as well as the parents’ intent for fostering the minor, as well as the economic capacity necessary for fostering, the degree of friendship between the father or the minor, and the minor’s intent (see Supreme Court Decision 2011Meu4719, Apr. 13, 2012, etc.).

In addition, if it is deemed necessary for the welfare of a child even if a person of parental authority is designated, the Family Court may change the person of parental authority upon the request of a relative within the fourth degree of relationship (see Article 909(6) of the Civil Act). As such, a relative within the fourth degree of relationship is for the welfare of a minor, claiming a change of parental authority to the Family Court. As such, an agreement that waives or limits such a claim is contrary to the good morals and other social order under Article 103 of the Civil Act,

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

1) The Plaintiff and the Defendant divorced by conciliation in the Seoul Family Court case No. 2010p. 7481, and jointly decided that the parents of the minor’s children were the parents and the rearer’s mother. However, even thereafter, the Plaintiff and the Defendant living together with their children.

2) The Plaintiff and the Defendant agreed to adjust the relationship with the Plaintiff upon the continuation of infertility. On condition that the Defendant renounces parental authority, the Plaintiff paid KRW 62.5 million to the Defendant, and if the Defendant wishes to recover parental authority in the future, the Defendant agreed to pay twice the solatium paid to the Plaintiff.

3) The Plaintiff paid a total of KRW 122 million to the Defendant twice, and the person with parental authority over minor children was replaced by the Plaintiff.

4) After the Defendant filed a claim with the Seoul Family Court for changing the person with parental authority for his/her child to himself/herself, and was subject to prior disposition prior to the judgment on the merits.

5) The Plaintiff asserted that “the Defendant ought to pay twice the amount of KRW 1220 million received from the Plaintiff as he/she recovered the status of a person with parental authority.”

C. Examining these facts in light of the legal principles as seen earlier, even if the person in parental authority of the child was changed to the plaintiff and the defendant paid consolation money to the defendant, the mother defendant is entitled to claim a change of the person in parental authority to the Family Court for the welfare of the child, and the agreement between the plaintiff and the defendant to waive or limit such claim is contrary to good morals and other social order. Thus, the part of the above agreement between the plaintiff and the defendant that paid twice the consolation money when the parental authority was recovered is limited to the defendant's claim for change of the person in parental authority for the welfare of the child,

D. Nevertheless, solely based on the circumstances stated in its reasoning, the lower court determined that the Defendant shall compensate the Plaintiff for KRW 125 million, which is two times the amount of KRW 62.5 million. In so determining, the lower court erred by misapprehending the legal doctrine on juristic act in anti-social order, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this point are with merit.

5. Conclusion

Therefore, without further proceeding to decide on the Plaintiff’s ground of appeal on the claim for reimbursement of consolation money due to the recovery of parental authority, the above part of the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s remaining appeal is dismissed. It is so decided as per Disposition by

Justices Noh Jeong-hee (Presiding Justice)