In the case of judicial divorce, whether the court should determine ex officio the person with parental authority and the person with parental authority over the minor child, even if the party’s request does not exist (affirmative)

In addition, considering the language and content of Article 837(1), (2), and (4), Articles 843, and 909(5) of the Civil Act to guarantee the welfare of children in the course of divorce, and the purport of the above provisions to ensure the welfare of children in the course of divorce. In addition, in cases of judicial divorce, taking into account the details and changes of the provisions of the Civil Act concerning the designation and decision of persons with parental authority at the time of divorce, the relationship between parental authority and parental authority, etc., even if no party’s claim is made, the court shall ex officio designate a person with parental authority and a custodian of a minor child, and therefore, if the court does not designate a person with parental authority and a custodian of a minor child while it declares a divorce

Articles 837(1), (2) and (4), 843, and 909(5) of the Civil Act; Article 212 of the Civil Procedure Act

Plaintiff (Law Firm Number, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Family & Family, Attorney Hah Jong-cheon, Counsel for defendant-appellant)

Suwon District Court Decision 2012Reu1899 decided April 25, 2013

The appeal concerning the designation of a person with parental authority and a custodian is dismissed. The remaining appeal is dismissed. The costs of appeal are assessed against the defendant.

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

1. As to the allegation in the grounds for judicial divorce and the claim for divorce by the responsible spouse

In light of the purport of the entire pleadings and the result of the examination of evidence, the court shall determine whether the arguments are true in accordance with logical and empirical rules based on the ideology of social justice and equity (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court below that the original judgment does not exceed the bounds of the principle of free evaluation of evidence are binding on the court of final appeal (Article 432 of the same Act).

For the reasons indicated in its reasoning, the lower court determined that the instant divorce claim constituted grounds for divorce under Article 840 subparag. 6 of the Civil Act, on the grounds that the marriage relationship between the Plaintiff and the Defendant was broken down to the extent that it would not be able to lead to the Plaintiff, and the enforcement of the continuation of the marital life constitutes a case where the Plaintiff’s responsibility for the cause of the failure of the marriage would not be heavier than the Defendant.

The allegation in the grounds of appeal disputing such judgment of the court of fact-finding is merely an error in the selection of evidence, determination of the value of evidence, and fact-finding based on the free evaluation of evidence belonging to the free evaluation of the court of fact-finding. Moreover, even if examining the reasoning of the judgment below in light of the aforementioned legal principles and the relevant legal principles at the time of original trial and the duly admitted evidence, the judgment of the court below did not err in the misapprehension of the legal principles as to the grounds for judicial divorce and the claim for divorce by the responsible spouse

2. As to the ground of appeal on the non-designation of a person with parental authority and a custodian

A. Article 909(5) of the Civil Act provides that a family court shall ex officio designate a person with parental authority in cases of judicial divorce, etc. In addition, Article 837 of the Civil Act provides that when a divorce is made, the parties to the case shall determine matters concerning the bringing-up of a child by agreement (Article 837). The agreement shall include matters concerning the decision of the person with custody, the burden of bringing-up expenses, the exercise of the visitation right and the method thereof (Article 909(1)); when the agreement on matters concerning bringing-up is not reached or cannot be reached, the family court shall, either ex officio or upon request of the parties (Article 837). In addition, Article 843 of the Civil Act provides that Article 83 of the Civil Act shall apply mutatis mutandis to the responsibility

In addition to the language and text of the above provisions, which are mandatory to determine matters concerning the responsibility of custody of a person with parental authority and a child in the course of divorce, and the purport of the above provisions to guarantee the welfare of a child in the course of divorce, in full view of the developments leading up to the amendment of the provisions of the Civil Act concerning the determination of matters concerning the designation and fostering of a person with parental authority and the changes thereof, the relationship between parental authority and the right of custody, etc. when divorce is divorced, the court shall ex officio designate a person with parental authority and a custodian of a minor child, and therefore, it is reasonable to interpret that there

However, in a case where a judgment is omitted, the said part of the lawsuit shall be deemed to be pending in the original court. As such, the lower court shall continue to render a judgment pursuant to Article 212 of the Civil Procedure Act, and the appeal on the said part is unlawful (see Supreme Court Decision 2004Da24083, Aug. 30, 2004, etc.).

B. According to the records, while accepting the plaintiff's preliminary claim seeking a judicial divorce and rendering a judgment that divorce between the plaintiff and the defendant, the court below accepted the plaintiff's preliminary claim and declared that the plaintiff is divorced, but did not make any judgment on the person with parental authority and the custodian for minor daughters in the text of

C. Examining these facts in light of the legal principles as seen earlier, the court below erred by omitting judgment on the designation of a person with parental authority and a person with custody over his/her married, but since the lawsuit on this part is still pending in the court below and thus is not subject to legitimate appeal, the appeal on this part is unlawful, and the above ground alone does not constitute an error of law affecting the judgment below which rendered a divorce by admitting the ground for judicial divorce.

3. Conclusion

Therefore, the appeal concerning the designation of a person with parental authority and a custodian is dismissed, and the remaining appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim So-young (Presiding Justice)