In a case where a person with parental authority requests the designation of a person with parental authority after the lapse of the period of one month or six months as stipulated in Article 909-2 of the Civil Act and paragraph (1) of the same Article, whether the Family Court may designate a surviving father or mother as a person with parental authority for the welfare of the minor (affirmative)

Article 909-2 of the Civil Act

Appellant (Law Firm Barun, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Seoul Family Court Order 2015BB62 dated July 29, 2016

The reappeal is dismissed. The costs of reappeal shall be borne by the re-appellant.

The grounds of reappeal are examined.

1. Article 909-2(1) of the Civil Act provides that “Where one parent designated as a sole person of parental authority over a minor dies on the grounds of divorce, etc., the surviving father or mother, etc. may request designation of the surviving father or mother as a person of parental authority within one month from the date of becoming aware of the death, and within six months from the date of death.” Article 909-2(3) of the same Act provides that “if a person of parental authority does not request designation of the person of parental authority within the above period, the Family Court may appoint the guardian ex officio or at the request of his/her relative, etc., the surviving father or mother may give the surviving father or mother an opportunity to state his/her opinion.” Article 909-2(4) of the same Act provides that “if it is deemed inappropriate for the request for designation of a person of parental authority under paragraph (1) or for appointment of a guardian under paragraph (3) of the same Article, the Family Court may dismiss the request. In such cases, ex officio designation of the surviving father or mother of the minor.”

Article 909-2 of the Civil Act provides for the procedure to promptly designate a person with parental authority or to commence a guardianship in order to prevent adverse effects on the welfare of the minor, as a matter of course, by designating a person with parental authority or commencing a guardianship, where one parent designated as a person with parental authority by reason of divorce, etc. is deceased (Article 909-2(3) of the Civil Act), and ultimately, to promote the welfare of the minor. In addition, even where a request for designation of a person with parental authority is made on the ground of no request for designation of a person with parental authority (Article 909-2(3) of the Civil Act), or where a person with parental authority is already appointed (Article 909-2(6) of the Civil Act), if the Family Court considers it necessary for the welfare of the minor, the surviving father or mother may, ex officio or upon request of the claimant, be designated as a person with parental authority (Article 909-2(1)1 or 6) of the Civil Act even if a request for designation of the person with parental authority or mother is made necessary for the welfare of the minor.

2. The court below dismissed the appeal filed by the re-appellant on the ground that it is reasonable to designate the petitioner as a person with parental authority for the welfare of the principal of the case in full view of the applicant's intent of fostering, parenting ability and parenting environment, age, gender and intention of the principal of the case, sex and intention, the attachment relationship between the petitioner and the principal of the case, and other various circumstances.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is just and acceptable. In so doing, the lower court did not err by misapprehending the legal doctrine regarding the designation of a person with parental authority, or by misapprehending the Constitution, Acts, orders or rules, which affected the trial.

3. The reappeal of this case is dismissed as it is without merit. The costs of reappeal are assessed against the re-appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)