Plaintiff

Defendant (Attorney Kim Young-gu, Counsel for defendant-appellant)

January 18, 2006

Busan District Court Decision 2004Ra7807 Decided July 13, 2005

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The compulsory execution according to the mediation protocol of the defendant in the claim case, such as divorce and consolation money of the Incheon District Court 2003Ma774 against the plaintiff, shall be dismissed.

1. Basic facts

The plaintiff and the defendant were married on April 21, 1993 and were legally married couple, but the defendant filed a divorce lawsuit on March 15, 2003, and filed a divorce lawsuit on March 15, 2004 in the case of divorce and consolation money, etc. (2003Ma774) with the Incheon District Court Decision 2003Ma74 on March 15, 2004, "the plaintiff and the defendant are divorced, and the plaintiff shall pay to the defendant the consolation money, 20 million won as the division of property, 38 million won as the division of property, and damages for delay as to each of the above money, and the fact that the voluntary conciliation was formed between the plaintiff and the defendant that "the plaintiff shall be designated as the

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

(1) After the establishment of the above voluntary mediation, the Plaintiff agreed to set the child support amount to be paid to the Defendant as the child support for the Defendant’s children at KRW 30 million, and agreed to set off the Defendant’s consolation money and the claim for division of property against the Plaintiff and the claim for the child support amounting to KRW 30 million against the Plaintiff at an equal amount.

(2) In addition, the Plaintiff expressed his/her intent to offset the amount equivalent to eight million won of the previous child support claim and the amount equivalent to 2.5 million won per capita until the Defendant becomes an adult, as decided in the case of the Busan District Court Branch Decision 2004Hun-Ma573, etc., which was rendered between the Plaintiff and the Defendant, against the Defendant. As such, the Plaintiff expressed his/her intent to offset the amount equivalent to eight million won of the previous child support claim and the amount equivalent to 30 million won of the future child support claim and the amount equal to that of the Defendant’s claim for consolation money and the division of property.

(3) If so, the defendant's right to claim a consolation money and the right to claim a division of property against the plaintiff has terminated to the extent equal to the child support claim by the above offset agreement or declaration of offset. Therefore, it is reasonable to deny compulsory execution based on the conciliation protocol of the above Incheon District Court 2003Ma774, which ordered the defendant to pay the plaintiff the full amount of consolation money and the right to claim a division of property, and the compulsory execution based on

B. Determination

(1) Whether a set-off agreement exists

After the establishment of a voluntary conciliation, the Plaintiff’s child support claim against the Defendant was set at KRW 30 million, and the Plaintiff agreed to set off the above child support claim and the Defendant’s consolation money and the claim for division of property against the Plaintiff at an equal amount after the establishment of the voluntary conciliation, and there is no other evidence to acknowledge the above assertion. Thus, this part of the Plaintiff’s assertion is groundless.

(2) Whether to recognize a set-off

(A) If one of the couple's divorces raises a child between them, the obligation to pay the child support to the other party shall be determined by an agreement between the parties pursuant to Article 837 (1) of the Civil Act, regardless of whether it is a child support in the past or in the future, or by the family court upon the party's request or ex officio pursuant to Article 837 (2) of the Civil Act. Thus, the right to seek the child support from the divorced couple's family court (hereinafter "child support claim") cannot be deemed to have specifically created the right because it is unclear and unclear until the specific contents are formed through an agreement between the parties or a family court's adjudication. Accordingly, it is not permitted to set off the child support claim from 50,000 won before the party's agreement is reached or the judgment of the family court's 50,000 won for the above child support claim from 10,000 won for the defendant's 20,000 won for the above child support claim against the plaintiff.

(B) In addition, although one of the married couple's claims for child support has the right against the other party, it is recognized within the extent necessary for fostering children's welfare and welfare, and even if such right has been specifically created, it may not be arbitrarily transferred or disposed of by the rearer for the purpose other than the purpose of fostering the child (which is no longer used for fostering the child, so it may be deemed that the rearer may arbitrarily transfer or dispose of the claim for child support in the past. However, although the past child support claim is also established only when the couple divorced under Article 837 of the Civil Act determines it as "matters concerning fostering the child" or when it is determined as "necessary matters for fostering the child" by the adjudication of the family court. If it is deemed possible to transfer or dispose of the past child support claim, the person liable for payment of child support has intentionally delayed payment of the child support, and thus, the obligation to rear the child may be avoided by offsetting his previous child support claim against the rearer. Thus, it is not allowed to offset the previous child support claim against the defendant's automatic claim for child support.

(C) Therefore, the defendant's claim for offset is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is without merit, and it is dismissed. It is so decided as per Disposition.

Judges Choi Jong-won (Presiding Judge)