[1] Order of mutual support between husband and wife and parent's duty of support for adult children, and whether repayment can be claimed against the primary person responsible for supporting the second person (affirmative)

[2] In a case where the other party's blood relative claims reimbursement of the past support allowance against the other party's husband or wife who has failed to perform the duty of support between husband and wife, matters to be considered when determining the existence and scope of the repayment duty

[3] Whether a claim for reimbursement of support fees, which is sought by a relative of the other party against either side of the married couple who has failed to fulfill a duty of support between husband and wife, constitutes civil litigation cases (affirmative)

[1] The duty of mutual support between husband and wife under Article 826(1) of the Civil Act is an essential duty of marital relationship, and the primary duty of support is to ensure the living of the person to be supported with the same level as that of the person to be supported. On the other hand, the duty of support to a child of full age as a lineal blood relative under Article 974 subparag. 1 and Article 975 of the Civil Act is the secondary duty of support to support his/her livelihood only when the person to be supported is unable to maintain his/her livelihood due to his/her own ability or labor, under the premise that the person to be supported is able to maintain his/her livelihood with respect to his/her own social status. Such primary duty of support and the secondary duty of support refers to not only the degree of the duty of support but also the priority order of the duty of support. Therefore, where the first and the second duty of support exist at the same time, the second duty of support bears the duty of support subordinate to the first duty of support.

[2] With respect to the past support allowance among husband and wife's support duty, barring any special circumstance, the person to be supported may claim the support allowance only for the fact that the person to be supported has failed to perform the support obligation despite the person to be supported, but has failed to perform the support obligation and has delayed performance. Thus, the existence and scope of the repayment obligation should be determined by considering all these factors in examining and determining the claim for the reimbursement of the past support allowance against one of the husband and wife, even though the husband and wife's support obligation is not performed. In other cases, the amount of support allowance between husband and wife should be determined by taking into account the property condition, revenue, living level and economic ability of both parties, social status, etc. of both parties, degree of need for support, degree of performance of the support obligation, and circumstance and degree of failure in marital life, etc.

[3] Article 2(1)2(b)1 of the Family Litigation Act provides that a disposition concerning support by a husband and wife pursuant to Article 826 of the Civil Act shall be taken, and Article 2(1)2(b)8 of the same Act provides that a disposition concerning support by a husband and wife pursuant to Articles 976 through 978 of the Civil Act shall be taken separately as a non-contentious family case. Therefore, a party’s claim for support allowance against a husband and wife who have failed to perform the duty of support between husband and wife constitutes a non-contentious family case under Article 976 through 978 of the Civil Act, and the other party’s claim for support allowance against a blood relative who has failed to perform the duty of support among relatives constitutes a non-contentious family case under Article 2(1)8 of the same Act, but a claim for support allowance by a blood relative against one of the husband and wife who has failed to perform the duty of support between the husband and wife does not fall under the exclusive jurisdiction of the family court as a non-contentious family case.

[1] Articles 826(1), 974 subparag. 1, and 975 of the Civil Act / [2] Articles 826(1), 974 subparag. 1, and 975 of the Civil Act / [3] Article 2(1)2 of the Family Litigation Act, Articles 976, 977, and 978 of the Civil Act

[2] Supreme Court Order 2005S50 dated June 12, 2008 (Gong2008Ha, 974)

Plaintiff

Defendant (Law Firm Lee Li-EL, Attorney Song-ju, Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na34073 decided October 11, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

After finding the facts as stated in its holding, the court below rejected the Plaintiff’s assertion that the Defendant cannot be deemed a senior support obligor solely on the ground that the Nonparty’s spouse is the Nonparty’s spouse, and that the Defendant’s support allowance paid by the Plaintiff cannot be deemed a senior support obligor solely on the ground that the Nonparty’s spouse is the Nonparty’s spouse. Furthermore, according to Articles 976 and 977 of the Civil Act, a support obligor provided for in Article 974 of the Civil Act bears the same duty of support abstractly in cases where the need for support arises to the recipient of support, and the specific duty of support, order of support, etc. is decided by agreement between the parties or by the family court.

2. However, it is difficult to accept the judgment of the court below for the following reasons.

A. (1) The duty of mutual support between husband and wife under Article 826(1) of the Civil Act is an essential duty of marital relationship, and the primary duty of support is to ensure the living of the person to be supported with the same degree as that of the person to be supported, thereby enabling the maintenance of marital community life. On the other hand, the duty of support to a child of full age as a lineal blood relative under Articles 974 subparag. 1 and 975 of the Civil Act, which is borne by parents, as a lineal blood relative, is the secondary duty of support, provided that the person to be supported is able to support his/her life only when the person to be supported cannot maintain his/her life due to his/her own ability or labor, on the premise that he/she

The first support obligation and the second support obligation mean not only the degree of the performance of the obligation but also the order of the performance of the obligation, so the second support obligation bears the first support obligation to be lower than the first support obligor.

Therefore, where the first and the second responsible provider concurrently exist, the first responsible provider bears the duty of support in preference to the second responsible provider, barring any special circumstance. Therefore, where the second responsible provider supports the eligible provider, the second responsible provider may claim reimbursement of the expenses incurred therein to the first responsible provider.

(2) However, the amount of the past support allowance to be paid by one spouse to the other spouse who is the first person under the second person under the duty of support as the first person under the duty of support is limited to the duty of support to be borne by the other spouse. We examine the scope of the duty of support.

First, barring special circumstances, with respect to the past support allowance among husband and wife's support duty, a person eligible for support may claim for support allowance only after the person liable for support has failed to perform the support duty and has delayed performance (see Supreme Court Order 2005S50, Jun. 12, 2008, etc.). Thus, even though the husband and wife's support duty is demanded to perform the support duty, the husband and wife has failed to perform the support duty but failed to perform the support duty, and if not, the husband and wife's support duty should pay the past support allowance before the claim for support is delayed performance, unless there are special circumstances such as the nature of the support duty or the concept of equity.

In addition, the amount of support allowance between husband and wife should be determined by comprehensively taking into account the property condition and revenue amount of both parties, living standard and economic capacity, social status, etc. of both parties, the degree of implementation of support obligation, the details and degree of failure of marital life, etc.

Therefore, the existence and scope of repayment obligation should be determined in consideration of all the above points in examining and determining the claim for reimbursement of support fees against either side of the married couple.

(3) Meanwhile, Article 2(1)2(b)1 of the Family Litigation Act provides that dispositions concerning support by the husband and wife pursuant to Article 826 of the Civil Act and dispositions concerning support pursuant to Articles 2(1)2(b)(e)8 of the same Act are separate non-contentious family cases, respectively. Thus, a party’s claim for support allowance against the husband and wife who have failed to perform the duty of support between husband and wife constitutes a non-contentious family case under Article 976 through 978 of the Civil Act, and a party’s claim for support allowance against one of the relatives who has failed to perform the duty of support among relatives constitutes a non-contentious family case under Article 2(1)2(b) of the same Act. However, a party’s claim for support allowance against the husband and wife who has failed to perform the duty of support between husband and wife constitutes a non-contentious family case under Article 2(1)2(b) of the same Act, which does not fall under the exclusive jurisdiction of the family court, and it constitutes a civil litigation case.

B. According to the facts and records duly admitted by the court below, the plaintiff is the mother of the non-party who is the non-party's spouse in 1968. The defendant is the non-party's spouse, and the non-party is the non-party's spouse after surgery on November 15, 2006 due to the non-party's blood transfusion, etc., and on December 29, 2009, food has been mixed and the marith is continuing until December 29, 2009. Examining these circumstances in light of the legal principles as seen earlier, the defendant is the first person under duty to support the non-party prior to the second person under duty to support unless there are special circumstances as the non-party under duty to support. Thus, if the plaintiff supported the non-party due to the disbursement of hospital expenses, etc. of the non-party

Meanwhile, in light of the following circumstances revealed by the record, namely, that it is difficult for the Nonparty to file a claim for support with the Defendant on the grounds that communication is impossible, the Defendant was aware of the need for support by the Nonparty, and the Defendant was actually engaged in the actual support with the knowledge of the fact that the Nonparty was still in need of support even after the Nonparty was suspended from support and the Plaintiff was aware of the fact that the support was continued, there is considerable room to deem that there is a circumstance to deem that the Defendant had a duty to pay the past support allowance before receiving a claim for support support from the Nonparty.

C. Nevertheless, the court below rejected the Plaintiff’s claim for reimbursement on the ground that the Defendant cannot be deemed as a person obligated to support prior to the Plaintiff, and thus, it did not err by misapprehending the legal principles on the order of performance of the obligation to support.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)