In a case where Gap and Eul (hereinafter referred to as "the person with parental authority and career Gap) were designated as "the person with parental authority and career Gap and they did not separately determine the payment of child support or visitation right, etc., and later Gap et al. were married and brought up Byung together, and requested full adoption against "the person with parental authority and career Byung", the case holding that the full adoption for "the person with parental authority did not satisfy the conditions of full adoption," or "the person with parental authority is deemed inappropriate for full adoption."

In a case where Gap and Eul (hereinafter referred to as "the person with parental authority over Byung was designated as the person with parental authority over Byung and the person with parental authority over Byung and did not separately determine the payment of child support or visitation right, etc., and later Gap and Eul filed a claim for full adoption against Byung after marriage with Byung, the case holding that the full adoption against Byung did not meet the requirements for full adoption under Article 908-2 (1) of the Civil Act, although it did not meet the requirements for full adoption under Article 908-2 (3) of the Civil Act, in view of the fact that Gap and Eul only decided the person with parental authority over Byung at the time of divorce with agreement, and there was no specific consultation about the payment of child support, etc., and even if not, they did not meet the requirements for full adoption, they constitute "the case where full adoption is deemed not appropriate considering the situation of fostering a person to be fully adopted, motive for full adoption, adoptive parent's ability to foster adoptive parents, and other circumstances."

Articles 837 and 908-2 of the Civil Act

Claimant

Persons concerned;

Principal of the case

Changwon District Court Decision 2014Ra325 dated November 5, 2014

1. The adjudication of the first instance shall be revoked;

2. The claimant's claim is dismissed.

1. Purport of request;

full adoption of the principal of a case shall be the full adoption of the claimant.

2. Purport of appeal;

The decision of the first instance shall be revoked, and a new trial shall be sought.

1. Basic facts

According to the whole records and the purport of the examination of this case, ① A appellant was married with a person other than the petitioner on May 1994 and delivered the principal of this case on February 12, 1997, ② A appellant and the person other than the petitioner agreed on February 6, 2001 to designate the person with parental authority and the person other than the applicant at the time of the divorce, and did not separately determine the payment of child support or the right to visitation right, etc.; ③ On April 21, 2010, the appellant and the person other than the petitioner are raising the principal of this case on marriage with the petitioner on April 21, 2010, and (4) the appellant did not pay the support fee for the principal of this case after the divorce with the person other than the petitioner or exercise the visitation right, and the appellant consistently agreed to the adoption at the court of first instance from May 4, 2015, which continued the appeal of this case to the date of the appeal of this case.

2. The assertion and judgment

A. The claimant's assertion

After the appellant was divorced from the claimant on February 6, 2001, the appellant did not hold visitation rights to the principal of the case and did not perform his duty to support the principal of the case at all. On the other hand, the appellant took care of the principal of the case as her child, and the principal of the case also took care of the principal of the case as her child, and according to the claimant's friendship with the principal of the case as her child, it is desirable for the appellant to take full care of the principal of the case without the consent of her mother as her child, for the welfare of the principal of the case.

B. Key issue of the instant case

As examined below, the current Civil Code requires the consent of the natural parents for full adoption, while the current Civil Code stipulates that the full adoption may be permitted without the consent of the natural parents only in exceptional cases where certain reasons exist. Thus, the issue of this case ultimately is whether the claimant can make the full adoption of the principal of this case, notwithstanding the opposition of the appellant who is the father of the principal of this case.

C. Determination

(i) the requirements for full adoption;

Our bilateral system began from the original succession of the family(A) and has gradually developed as a system for children. On March 31, 2005, through the partial amendment of the Civil Act on March 31, 2005, the two systems under the existing civil law (hereinafter referred to as "general adopted children") have been maintained as they are, and separately introduced the so-called full adopted adoption system (if the full adoption is established, only the relationship between the adoptive parent and the natural parents before the adoption, and the relationship between the natural parents before the adoption and their children is severed, which is the largest difference between the general adopted children).

As a requirement for full adoption, the current Civil Code provides that the adoption shall be made in cases where a couple who has been married for not less than three years and is jointly adopted, or one of the married couple who has been married for not less than one year, shall be a minor; ② the child to be adopted shall be a minor; ③ the natural parents of a child to be adopted shall consent to the full adoption; ③ the natural parents of the child to be adopted shall not be able to give consent to the full adoption; ④ the adoption shall be given with the consent of the legal representative if the child to be fully adopted is 13 years of age or older; ④ the adoption shall be given with the consent of the legal representative if the child to be fully adopted is under 13 years of age (Article 908-2(1)).

Meanwhile, through the partial amendment on February 10, 2012, the Civil Act added an exception provision for allowing full adoption to the legal representative or natural parents of a minor in any of the following cases in order to prevent abuse of the right to consent to full adoption without the consent or consent of the legal representative or natural parents: (i) where the legal representative refuses to give consent or consent without justifiable grounds (if the legal representative is a person of parental authority, 2) where the legal representative refuses to give consent or consent without justifiable grounds; (ii) where the natural parents have failed to perform the duty to support the child for three or more years due to a cause attributable to himself/herself, and (iii) where the natural parents have failed to exercise visitation rights without performing the duty to support the child for three or more years (Article 908-2(2)).

2) Interpretation of the provision excluding the right to consent

Even based on all materials submitted by the claimant, it is difficult to view that the appellant who is the relative of the principal of the case constitutes “the case where he/she has abused or deserted the principal of the case or otherwise has severely impaired the welfare of his/her child,” and therefore, in this case, the question is whether the appellant constitutes “the case where he/she fails to perform his/her duty to support the principal of the case for three years or longer due to the reason attributable to him/her,”

In light of the fact that full adoption has a significant impact on the status of the natural parents, such as completely cutting down the relationship between the natural parents and their children, and that the natural parents also possess the fundamental rights concerning family life based on Articles 10 and 36(1) of the Constitution (see Constitutional Court en banc Order 2010Hun-Ba87, May 31, 2012). In interpreting Article 908-2(2) of the Civil Act, which provides for excluding the right of consent of the natural parents in full adoption, it is necessary to respect the welfare of the child as the top priority of the legislative purpose and purpose of the full adoption system and to ensure that the fundamental rights of the natural parents are not unfairly infringed.

Meanwhile, the right to claim payment of child support in the past against the other party, who is a joint custody obligor, was basically an abstract legal status recognized based on the relationship of relatives, which has the nature of property right more clearly independent by converting the contents of the relevant child support into a specific claim by a family court’s judgment which discretionary and organizationally determines the contents of the parties’ agreement or a family court’s specific claim. Thus, the right to child support in the past cannot be deemed as a property right for a custodian to exercise his/her right before the right to claim payment is established through a consultation between the parties or a family court’s adjudication (see Supreme Court Order 208S67, Jul. 29, 2011, etc.). Therefore, there is no room for extinctive prescription in such state.

The legal principles on the necessity of the normative harmonious interpretation of the requirements for full adoption and the legal nature of the right to claim child support are as follows: ① The revised Civil Act which provides for the burden of child care expenses, whether to exercise the visitation right, and the method thereof, etc. to be necessarily determined upon the decision of the person to be nurtured upon the divorce; ② The Civil Act enters into force after June 22, 2008; ② The interpretation that, upon the divorce of the natural parents, one parent who does not raise a child for three or more years can immediately deprive his/her parents of the right to consent to full adoption immediately if he/she did not pay the child support for three or more years, regardless of the time when one parent raises the child and the age of the child, so that the right to consent to full adoption could be excessively mitigated to infringe on the fundamental rights of the natural parents, which are the exception provision that allows the adoption of full adoption without the consent or consent of the natural parents, to the extent that the parents are not obligated to support the child for three or more years after the formation of the family court's specific obligation to support for three or more years.

3) In the instant case:

On February 6, 2001, the appellant who returned to the instant case and was the mother of the principal of the instant case did not perform the duty to support the principal of the instant case and did not visit the interview after the consultation with the applicant on February 6, 2001.

However, considering the following circumstances acknowledged by the overall purport of the record and examination of the case, ① an appellant and a person other than the claimant have determined only the adopted child at the time of adoption divorce (before the enforcement of the Civil Act), and there has been no specific consultation about the payment of child support so far, and so far, the appellant may not make any objection to the adoption of the case’s grandparents who want to make an interview with the principal of the case, even though he did not want to do so, with the principal of the case’s family affairs. However, considering the fact that he did not have an interview with the principal of the case’s family affairs, he did not appear to have an opinion to the effect that he did not have an opportunity to take care of the principal of the case’s family affairs, and (3) the appellant did not have an opportunity to take care of the principal of the case’s family affairs, and even if he did not have an opportunity to take care of the principal of the case’s family affairs, he did not appear to have an opinion to the effect that he did not have a new full adoption with the principal of the case’s family affairs.

Therefore, a claimant's claim for full adoption, which differs from this premise, cannot be accepted.

3. Conclusion

Therefore, the claimant's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed as it is unfair to conclude this conclusion, and it shall be dismissed as it is so decided as per Disposition.

Judges Hong Chang-woo (Presiding Judge) Kim Jong-Un et al.