Claimant (Attorney Kim Yong-sik, Counsel for plaintiff-appellant)

Other party (Attorney Park Jae-hwan et al., Counsel for the plaintiff-appellant)

Principal of the case

Daejeon Family Court Decision 2016Rahap17 dated September 4, 2017

1. The adjudication of the first instance shall be modified as follows:

(a) limit the protection and culture rights, the right to designate residence, the right to take disciplinary action, and other powers relating to rearing among the parental authority over the principal of the other party;

B. The applicant shall be appointed as the guardian of the minor with respect to the protection, culture, designation of residence, disciplinary right, and other powers related to the rearing of the principal of the case.

(c) The guardian of a minor shall bear the following duties:

1) From October 31, 2018 to October 31 each year, a report on guardianship affairs shall be submitted to the Daejeon Family Court by December 31 of the same year as of October 31 of the same year.

2) An active cooperation with the other party to the interview right of the principal of the case, provided that the interview right is performed by respecting the intent of the principal of the case as to whether and how to conduct the interview right.

2. The total expenses of an adjudication shall be borne individually by each person;

1. Purport of claim

The other party shall lose parental authority over the principal of the case. The guardian of the principal of the case shall be appointed as the applicant.

2. Purport of appeal;

The first instance trial is revoked. The claim of this case is dismissed.

1. Facts of recognition;

The following facts may be acknowledged in full view of the records and the overall purport of the examination of the case.

(a) Relationship between the Parties

1) On May 29, 2005, the other party and the deceased Nonparty 1 (hereinafter referred to as “the deceased”) are legally married couple who entered into a marriage report on February 7, 2006. The other party and the deceased have been working as a director of a national book institute, research institute, or a private teaching institute from before marriage, and have been employed as a director of a national book institute, research institute, or a private teaching institute after marriage.

2) On August 8, 2006, the principal of the case is a woman born between the other party and the deceased on August 8, 2006, and the claimant is a woman born by the deceased, and is an external father of the principal of the case.

B. Fireation and separation of the other party and the deceased

1) From the time of marriage with the other party, the Deceased did not want to have the relationship with the other party (the other party’s mother’s mother’s child) and the non-party 2, on May 201, Nonparty 2 visited the apartment of this case every day in order to assist the other party who lives together with the director in the vicinity of Daejeon Pream-gu ( Address omitted) (hereinafter “the apartment of this case”) and the deceased’s home, and the deceased’s home care and family affairs.

2) During that period, the Deceased was diagnosed by workplace cancer around May 2012 and was performed on the 22th of the same month.

3) Even when the Deceased was under navigation cancer treatment after the operation, the deceased and Nonparty 2 continued to be in progress during the medical treatment. The other party mainly appeared between the wife and the mother’s father, and as a result, the conflict between the other party and the Deceased was deepened. As a result, the other party to the time was living by entering the instant apartment on December 16, 2012 and entering the house of Nonparty 2, thereby resulting in the other party’s and Nonparty 2’s separate living.

C. The relationship between the other party and the deceased during the separate life period

1) On the other hand, the other party demanded divorce from the deceased immediately after separation, and for a long time continued contact with the deceased and the principal of the case through visiting the apartment of this case, telephone conversations, etc. However, there was no conflict between the other party and the deceased on the issue of division of property and child support.

2) While the Deceased continued to work as an instructor of a driving school, he/she, while raising the principal of the case alone, received a re-operation on October 15, 2013 due to the recurrence of workplace cancer around September 2013.

3) On the other hand, the other party did not visit the deceased who had been hospitalized at once after re-operation and did not notify the deceased of his/her condition on November 2013.

4) On December 1, 2013, the claimant sent a text message to the other party to the effect that “the deceased and the principal of the case who returned to his house are asked to see.” As to this, the other party confirmed to the effect that “the principal of the case will see the case itself, but only if the other party is the case, the husband is the only spouse, and the marital relationship has already been broken down, and the couple’s marital relationship has already been broken down.”

5) On December 26, 2013, the Deceased filed an application for provisional disposition prohibiting the disposal of the instant apartment (hereinafter “instant provisional disposition”) with the right to claim for ownership transfer registration based on the division of property based on divorce against the Daejeon Family Court Daejeon Family Court’s 2013 business group37, as the right to be preserved, with the other party’s debtor as the debtor, and received the decision of acceptance on December 30, 201.

6) Meanwhile, around June 2014, the Deceased demanded payment of child support to the other party by telephone, and the other party thereafter paid KRW 300,000 per month to the Deceased through account transfer from around that time.

D. The progress of the divorce lawsuit of this case and the death of the Deceased

1) Even after the deceased was unable to live in a workplace, he/she requested that the other party “a request the other party to provide economic support so that he/she may live in the workplace while raising the principal of the case.” On August 2014, the other party made phone call to the deceased and sent him/her to B, who is able to raise the case principal. The 1/2 share of the apartment of this case is to cooperate in exercising his/her right by receiving a loan as security, etc. However, he/she was aware of his/her own life and retired from the workplace.”

2) After September 1, 2014, the other party filed a petition against the deceased for an order to file a lawsuit against the instant provisional disposition with the Daejeon Family Court 2014 business211. On September 11, 2014, the deceased, upon receipt of the order to file a lawsuit against the other party, filed a lawsuit for divorce, etc. with the Daejeon Family Court 2014dan7519, and the other party filed a counterclaim against the deceased at the same court 2014dan5291 (hereinafter referred to as the “instant divorce lawsuit”).

3) Of the instant divorce lawsuit, the Deceased applied for a prior disposition for fostering the principal of the instant case based on Article 62(1) of the Family Litigation Act and decided on November 14, 2014 that “The other party shall pay 700,000 won per month to the Deceased as child support.”

4) The other party paid KRW 700,000 per month to the deceased through the account transfer from around that time, and requested the deceased to cooperate with the visitation right with the principal of the case and continued the visitation right with the principal of the case one time a week from January 2015.

5) However, while the instant divorce lawsuit was pending, the Deceased died on May 25, 2016, and the said lawsuit was completed.

E. The circumstances after the deceased died

1) In the process of taking a funeral for the Deceased, the claimant, his wife, non-party 3, and their children (in case of a common name, hereinafter referred to as “family member of the deceased,” and when referring only to the claimant and the non-party 3, hereinafter referred to as “the claimant and the non-party 3”), the claimant and the non-party 3 were considered to have died of the deceased’s imprudente due to the other party’s neglect, and the claimant and the non-party 3 were exposed to a serious reaction against the other party. The other party, who was threatened with the threat, attended a funeral ceremony with the guard and attended a conflict with his family.

2) On the other hand, after the death of the deceased, the claimant and the couple considered the principal of the case in the apartment of this case, and the other party requested the claimant’s husband and wife to deliver the above apartment with the content certification from the beginning of June 2016.

3) On June 10, 2016, the claimant filed a petition for the instant adjudication. On June 27, 2016, the opposing party filed a petition for adjudication against the claimant’s husband and wife for the adjudication seeking the delivery of the principal of the case at Daejeon Family Court No. 2016-Ma10102.

4) Around that time, the claimant’s family member informed the broadcasting company to the effect that “the other party was unable to live because the deceased and flind were abandoned and flind with the victim’s body,” and then, the broadcast was made on August 2, 2016, and immediately after the said broadcast, the claimant’s family member was in the current residence where the principal of the case was flind and flind with the deceased.”

5) The claimant, after the director, intended to transfer the principal of the case to a three-dimensional elementary school located in Daejeon, but the other party who is a person with parental authority did not cooperate with him; on February 13, 2017, the Daejeon Family Court temporarily suspended the exercise of the other party’s parental authority; and on February 13, 2017, the applicant transferred the principal of the case after being adjudicated as an acting guardian for the guardian of the minor of the principal of the case.

(f) The attitude and present situation to the other party of the principal of the case;

1) The principal of the instant case did not have any particular conflict with the other party during the process of visitation with the other party from January 2015. After the death of the deceased, the principal began to disclose the other party’s identity to the other party and to refuse to communicate or communicate with the other party.

2) The other party sought the instant principal’s school to explain his/her position before the date of transfer to another school, but failed due to the claimant’s his/her fault, and tried to hold an interview with the teacher with the applicant’s cooperation to consult about his/her school life after the transfer to another school, but this was also the opposite to the claimant’s family.

3) At present, the principal of the case is living in the third class with his family members and stable school life, and the other party still expresses a strong rejection and does not have an interview negotiation.

2. The assertion and judgment

A. Summary of the parties' assertion

1) The claimant's assertion

A) In light of the fact that the other party abandons the principal of the case by leaving the principal of the case where the deceased and the deceased were living together and abandoned the principal of the case until the deceased died, the other party's actual intent of fostering the principal of the case is the question of whether the other party is true, the principal of the case is actively refusing custody of the other party, and the other party's ability to foster the principal of the case is limited, etc., there is a serious reason for not being able to exercise parental authority over the principal of the case, and the other party's exercise of parental authority is detrimental to or

B) Inasmuch as the claimant who is the outer father of the principal of the case raises the principal of the case properly and has the ability to rear the principal of the case until the principal of the case becomes adult, it is reasonable to appoint the claimant as the guardian of the principal of the case.

2) The other party's assertion

A) The other party, while taking a divorce procedure with the deceased, took a separate place, exchanged the contact with the deceased, visited the principal of the case, and maintained a smooth relationship with the deceased and the principal of the case by paying the deceased’s child support to the deceased. It is unreasonable for the principal of the case to lose the other party’s parental authority solely on the ground that the principal of the case expresses his refusal to the other party.

B) In light of the fact that the claimant is aged and has no particular income from the disease, and that the claimant has continuously induced an open trial against the other party, it is unreasonable to appoint the claimant as the guardian of the principal of the case.

B. Judgment on the claim for loss of parental authority

1) Relevant laws and regulations and their interpretation

A) Parental authority is at the same time a parent is an obligation under the positive law recognized by a law for the realization of child’s welfare. Therefore, parents are obliged to exercise parental authority in a manner consistent with the welfare of the child, and when the welfare of the child is at risk in violation of such a duty, the State which is responsible for protecting the child must intervene and take necessary measures. However, the declaration of loss of parental authority deprived of parental authority from the parent should not be exercised without permission by the most strong means that the court can take, and a careful judgment is necessary.

B) From this perspective, our Civil Act provides that “where the father or the mother has abused his/her parental authority to severely harm or are likely to harm the welfare of the child, the family court may order the loss or temporary suspension of the parental authority (Article 924(1)).” Meanwhile, the Family Court provides that “where it is difficult or inappropriate for a person with parental authority to exercise parental authority over specific matters, such as designation of residence or disciplinary action or other decisions on personal affairs, etc., to harm or are likely to harm the welfare of the child, the court may impose some restrictions on the parental authority within a specified scope (Article 924-2).” (Article 924-2), “The adjudication on the loss of parental authority under Article 924 may only be made in cases where the temporary suspension of parental authority under the same Article, partial restriction of parental authority under Article 924-2, or any other measure is taken, the welfare of the child can not be sufficiently protected, as well as the abuse of parental authority or serious reasons for the abuse of parental authority.” (Article 925-2(1).

C) Therefore, in order to declare the loss of parental authority, ① abuse of parental authority, ② significant misconduct, ③ child abuse, and ④ other serious causes for which the exercise of parental authority is impossible, which may cause serious harm to or threaten to cause harm to the welfare of the child. On the other hand, in cases where it is difficult or inappropriate for a person with parental authority to exercise parental authority, but it is difficult or inappropriate for the person with parental authority to regard it as a cause for the loss of parental authority, or it is possible to sufficiently protect the welfare of the child due to other measures, such as partial restriction on parental authority, etc., the court may not adjudicate the loss of the whole parental authority, and in such cases, the court may adjudicate the partial restriction

2) Determination

A) As to the instant case, even though the deceased was in need of assistance on or around November 201, 2013 due to re-operation and loss of economic capacity, the other party still refused the marriage with the deceased and left the deceased in a legal marital relationship so that they may die because of the failure of the marital relationship with the deceased and the divorce procedure. However, in light of the following circumstances acknowledged by comprehensively taking into account the facts recognized and the overall purport of the examination, it is difficult to deem that there was a cause of loss of parental authority, as listed above, in relation to the principal of the instant case.

① Before the death of the Deceased, the Deceased was able to look at the principal of the case, and after the Deceased’s death, the claimant’s family was excluding the other party, and the other party’s abandonment did not have to be protected.

② Rather, while the deceased was living separately from the deceased, the other party expressed to the deceased that “if it is difficult for the deceased to rear the principal of the case, he will rear the principal of the case,” and had consistently expressed his intention to rear the principal of the case, even after the death of the deceased, the other party expressed his intention to rear the deceased’s family.

③ While refusing to provide support to the deceased upon his request for economic support, the other party paid part of the child support for the principal of the case from June 2014 to the time of his death. From January 2015 to the time of the deceased’s death, the other party regularly continued visitation with the principal of the case and continued contact with the principal of the case, and attempted to keep contact with the principal of the case even after the deceased’s death.

④ The principal of the instant case maintained a relatively favorable relationship with the other party before the death of the deceased, and the deceased appeared to have been seriously refused from the time of the death. This is not due to the other party’s attitude and treatment, but due to the other party’s cruel act or other improper act.

(5) It does not seem that the other party does not seem to have any mental or physical problem, and it does not seem that the other party has any personal knowledge that impedes the exercise of parental authority over the principal of a case.

B) However, it seems that the principal of the case appears to be seriously refused to the extent that the other party is not merely a hostile judgment against the other party, and this situation continues for a considerable period of time. The other party's direct exercise of parental authority to raise the principal of the case may seriously undermine the welfare of the principal of the case. Therefore, it is reasonable to restrict the other party's right of custody among parental authority.

C. Determination on the request for the appointment of a guardian

Although the claimant conflicts with the other party and has an adverse impact on the appraisal of the principal of this case, it cannot be ruled out that ① the claimant has moved his place of residence for the principal of this case after the death of the deceased, ② the wife and children of the claimant have resided in the third class and have been able to foster the principal of this case, ② the principal of this case has been able to foster the principal of this case while living in the third class, and ③ it seems inappropriate to change the rearing environment of the principal of this case in light of the psychological and emotional conditions of the principal of this case, it would be desirable to appoint the petitioner as the guardian with respect to the authority related to the fostering of the principal of this case.

3. Conclusion

Therefore, with respect to the claim for adjudication of loss of parental authority of the claimant, only the restriction on the authority related to the custody of the person in question shall be imposed, commencement of guardianship of the person in question, appointment of the claimant as the guardian of the minor at the same time, and setting obligations to the guardian of the minor, and the judgment of the court of first instance shall be judged as above by changing the trial as above.

Judges Lee Jon-hun (Presiding Judge)