Whether “unfair” is determined on the basis of “whether it is necessary for the welfare of children” in light of all the circumstances under Article 837(5) of the current Civil Act regarding the change of matters concerning childcare, or whether the burden of child support prescribed by a trial or by an agreement between the parties, should be determined (affirmative) and matters to be considered when a family court examines a request for a trial seeking reduction of

Article 837(5) of the Civil Act provides that “where it is deemed necessary for the welfare of a child (hereinafter referred to as “child”), the family court may change matters concerning childcare or take other appropriate measures, ex officio or upon the request of the father, mother, or child or prosecutor (hereinafter referred to as “child”), with respect to the change of matters concerning childcare (hereinafter referred to as “child”). Article 837(2) of the former Civil Act (amended by Act No. 8720, Dec. 21, 2007) which regulates the same (hereinafter referred to as “current provision”). Article 837(2) of the former Civil Act (amended by Act No. 8720, Dec. 21, 2007) provides that “the family court shall determine matters concerning childcare in consideration of all the circumstances and may change such matters at any time” (Article 837(5) of the former Civil Act).

At the time of the enforcement of the previous provision, the Supreme Court has made a decision on the change of the child support burden as follows. The Court held that the change may be made at any time in case where it is recognized as being unfair in light of the overall circumstances of the previous provisions when the original decision or the matters agreed upon by the parties are deemed unfair in light of the overall circumstances of the previous provisions, and it is not possible to change only when there is a special change in circumstances after the consultation. The Court held that the parties may change the child support burden burden under an agreement at any time when it is recognized as being unfairly determined in light of the overall circumstances, such as the age of the children as stipulated in the previous provisions, the financial status and other circumstances of the parents, etc.

Article 837(5) of the Civil Act, which provides for the change of matters concerning bringing-up, added the phrase “where it is necessary for the welfare of a child” instead of deleting the phrase “influence” under Article 837(2) of the former Civil Act (amended by Act No. 8720, Dec. 21, 2007). At the same time, there was a newly established provision to the effect that, at the same time, the Family Court shall determine matters concerning bringing-up ex officio in cases where the parents fail to reach an agreement on bringing-up or are unable to reach an agreement on matters concerning bringing-up when they are divorced, or such agreement goes against the welfare of the child (Article 837(3) and (4) of the Civil Act). Furthermore, the Civil Act (amended by Act No. 9650, May 8, 2009) was newly established, and the Family Court established a new provision under Article 836-2(5) of the same Act, thereby allowing the recognition of enforcement in the protocol by confirming the child support burden.

In full view of the contents of the relevant provisions and the purport of the amendment of the Act, the contents of the revised provisions may be modified when it is deemed that the family court's payment of the child support determined by the trial or the parties' consultation has become unfair in light of the overall circumstances. However, whether the previous child support burden was "unfair" or not should be determined based on the "whether it is necessary for the welfare of the child", which is the basic ideology of controlling the

In particular, it is difficult to view the reduction of child support as necessary measures for the welfare of the child in general. When a family court examines a trial seeking a reduction of child support, it shall consider the impact of the reduction of child support on the child, and determine whether it is inevitable to reduce the child support by taking into account all the circumstances, such as the situation and amount determined in the previous child support, the amount of the child support, the consolation money determined in addition to the original child support, whether or not there exists property agreement, such as division of property, property agreement and the burden of the child support, whether or not there is any reason attributable to the party concerned, whether or not the change has occurred, the number, age and degree of education, the occupation, health, income, financial capacity, change of the status, and price trend of the child welfare.

Article 837(2) of the former Civil Act (Amended by Act No. 8720, Dec. 21, 2007); Article 836-2(5) of the former Civil Act (Amended by Act No. 10429, Mar. 7, 201); Article 837(3), (4), and (5) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Re-appellant

Busan Family Court Order 2017BB20036 dated March 22, 2018

The order of the court below is reversed, and the case is remanded to Busan Family Court Panel Division.

The grounds of reappeal are examined.

1. A. Article 837(5) of the Civil Act provides that “where it is deemed necessary for the welfare of a child (a)” (hereinafter “child”), the family court may change matters concerning child care or take other appropriate measures ex officio or upon the request of the father, mother, and child, and the prosecutor, or ex officio (Article 837(5) of the Civil Act; hereinafter “current provision”). Article 837(2) of the former Civil Act (amended by Act No. 8720, Dec. 21, 2007) that regulates the same provision provides that “the family court may determine matters concerning child care and change them at any time, taking into account all the circumstances,” (Article 837(2) of the former Civil Act provides that “The previous provision that the family court may change matters concerning child care at any time prior to the amendment.”

B. At the time of enforcement of the previous provision, the Supreme Court has made a decision as follows with regard to the change of the child support burden. In a case where the parties have determined the matters necessary for the child support decided once by the family court after consultation, and thereafter have requested the family court for the change thereof, the family court held that the matters can be changed if the original decision or the matters determined by consultation between the parties are deemed to be improper in light of the overall circumstances of the previous provisions, and that the change of the matters may not be permitted only when there is a special change of circumstances after consultation (see Supreme Court Decision 90Meu699, Jun. 25, 1991). In a case where the parties seek the change of the part concerning the child support burden burden as determined by consultation, the court held that the parties may change it at any time if it is recognized so by examining whether the matters agreed upon by the parties have been unfairly determined in light of the overall circumstances, such as the age of the child, the financial status of the parents, etc. (see Supreme Court Order 98Du17, 18, Jul.

However, the term “if necessary for the welfare of the child” was deleted from the phrase of the previous provision, which provides for the change of the matters of custody was added to the phrase “if it is necessary for the welfare of the child”. At the same time, there was a new provision that the parent does not reach or cannot reach an agreement on the matters of custody when the parents divorce, or if the agreement is contrary to the welfare of the child, the family court shall determine the matters of custody ex officio (Article 837(3) and (4) of the Civil Act). Furthermore, Article 836-2(5) of the Civil Act (amended by Act No. 9650, May 8, 2009) was newly established, and the Family Court introduced a system that recognizes the executory power in the protocol of child support burden upon ascertaining the contents of the child support burden that the parents consulted.

C. In full view of the contents of the relevant provisions and the purport of the amendment of the Act, when the Family Court recognizes the contents of the child support burden determined by a trial or a party’s agreement as unfair in light of the overall circumstances, the contents may be modified. However, whether the previous child support burden was “unfair” should be determined based on the “whether it is necessary for the welfare of the child,” which is the basic ideology that controls the parent-child law.

In particular, it is difficult to view the reduction of child support as necessary measures for the welfare of the child in general. When a family court examines a request for a trial seeking a reduction of child support, it shall consider the impact of the reduction of child support on the child, and determine whether it is inevitable to reduce the child support by comprehensively taking into account various circumstances, such as the situation and amount determined by the previous child support, the amount of the child support, consolation money determined by the resolution of marriage in addition to the initially determined child support, whether or not property agreement, such as division of property, property agreement and the burden of the child support, whether or not there is any reason attributable to the party concerned, whether or not the change has been attributable to the party concerned, the number, age and degree of education, the occupation, health, income, financial capacity, change of the status, price trend of the child.

2. A. On June 14, 2013, the lower court affirmed the first instance court’s judgment that reduced the child support, in consideration of the circumstances in which the claimant and the other party agreed that the child support of the principal of the case should be paid to the other party, while the claimant and the other party have been divorced by voluntary mediation.

B. The record reveals the following facts.

1) On January 7, 2010, the claimant and the other party filed a marriage report and had the principal of the case who is a minor under the chain. On June 14, 2013, a voluntary conciliation was concluded in the case of divorce claim, such as the Busan Family Court 2012ddan26462, 29508.

2) The conciliation clause provides that the claimant and the other party shall have no exchange and divorce between consolation money and division of property, but the other party shall be designated as the person in parental authority and the guardian for the principal of the case, and the claimant shall pay 325,000 won per person from June 2013 to the time the principal of the case enters an elementary school, 50,000 won per person before the principal of the case enters the elementary school, 60,000 won per person until he reaches the age of 19,000, and the claimant may regularly contact the principal of the case.

3) The lower court determined that 400,000 won per capita per capita and 500,000 won per capita per capita from the date of this case’s confirmation to the date when the principal of this case enters a middle school, by reducing the child support to be borne by the claimant, shall be paid monthly.

4) The claimant served in an enterprise with the trade name of ○○○○○ operated by his father. The other party asserted that the claimant’s salary was KRW 2,100,000 per month from July 2012 to October 2012 in cases of the above divorce, etc. The claimant submitted a withholding receipt for wage of KRW 1,60,000 per month, asserting that the above ○○○○ became difficult due to the difficulties in operation of the above ○○○○ around the time of the first instance trial, and that the claimant received the above amount of KRW 1,60,000 per month from February 2017 to April 2017, and that the above amount was the total amount paid, from March 10 to December 31, 2016, and from March 10 to December 31, 2016.

5) During the marriage period, the claimant liveded in a house equivalent to approximately KRW 100,00,000 owned by the mother, and resided in an officetel after being divorced from the other party, and purchased approximately KRW 120,000,000 in Busan ( Address omitted) at approximately KRW 53.29,000,000, the claimant spent approximately KRW 640,000 per month to repay the principal and interest of the real estate.

6) The other party is paid the amount of KRW 1,700,000 per month as a child-care center teacher.

C. We examine these circumstances in light of the legal principles as seen earlier.

The claimant working in the family company run by his father was in a position to know his operating status and future business status. Furthermore, the claimant, while married in the real estate owned by his mother, moved his residence to an officetel after divorce, newly purchased the real estate after moving his residence to an officetel.

The data submitted by the claimant that the income has decreased and it is difficult to view it as an objective evidence because it is based on the statement of salary prepared by the family company or the data submitted by the claimant. However, it is difficult to believe that the total amount of monthly salary is fixed in 1,600,000 won according to the claimant's argument. Even if the claimant has disbursed the principal and interest of the loan to prepare a new real estate after divorce, it is made at an investment level for the increase of assets of the claimant, and it is not sufficiently considered as the child support to be paid to the principal of the case.

D. Furthermore, even though the other party had had considerable property for the claimant at the time of voluntary adjustment, there was no money received as consolation money and division of property from the claimant, and even if such circumstance was considered in calculating the child support, the lower court did not have any recorded perception of the trial. As can be seen, the lower court did not examine whether the amount of the child support is necessary for the welfare of the child and at any time without examining according to the aforementioned determination criteria, and stated that the child support was already reduced under the circumstances stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine regarding the reduction of the child support, and thereby adversely affected the trial. The ground of re-appeal pointing this out is with merit.

3. Therefore, the order 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 Jo Hee-de (Presiding Justice)