CONTENTS
- 1. Nonpayment of Child Support, What Were the Detailed Circumstances?
- - Nonpayment of Child Support, What Are the Relevant Laws?
- 2. Nonpayment of Child Support, What Was the Court's Determination?
- 3. Nonpayment of Child Support, How Should One Respond?
- 4. Nonpayment of Child Support, Daeryun's Strategy
1. Nonpayment of Child Support, What Were the Detailed Circumstances?
A, who was brought to trial for nonpayment of child support, failed to pay 96 million won in child support for two children to a former spouse for about ten years following the divorce.
A subsequently received a detention order* from the family court. However, A claimed to have been in poor health, having undergone heart surgery, and to have faced economic hardship, and the only payment made was a single payment of 5 million won in child support before the detention hearing.
B, who raised the two children for ten years without A's child support by running a street food stall and working at a factory, filed a lawsuit to enforce the payment of child support.
The “Act on Enforcement and Support of Child Support Payment (hereinafter the Child Support Enforcement Act)” was later amended. Under the amended Act, a person who fails to perform a child support obligation for one year without justifiable grounds may be subject to imprisonment for up to one year or a fine of up to 10 million won.
*Detention order: a court decision confining a person in a detention facility or the like for a certain period
Nonpayment of Child Support, What Are the Relevant Laws?
🔗Nonpayment of child support may, under the relevant laws, result in criminal punishment and administrative dispositions.
▣ Act on Enforcement and Support of Child Support Payment
Article 1 (Purpose)
The purpose of this Act is to support measures such as the enforcement of child support payment so that a parent who directly raises a minor child may smoothly receive child support from the parent who does not raise the minor child, thereby creating a safe environment for raising the minor child.
The following explains the penalties that may be imposed for nonpayment of child support.
Criminal Punishment | • Where child support is not paid without justifiable grounds, a detention order • Where child support remains unpaid within one year from the date of receiving such detention order, imprisonment for up to one year or a fine of up to 10 million won |
Administrative Dispositions | Where the child support obligation meets certain conditions 1. Suspension of the driver's license 2. Disposition prohibiting departure from the country 3. Public disclosure of the list of persons who fail to pay child support |
2. Nonpayment of Child Support, What Was the Court's Determination?
As to the parent who failed to pay child support, the court of first instance imposed a sentence of three months' imprisonment.
This was the first actual custodial sentence among the cases prosecuted on charges of nonpayment of child support in the three years since the Child Support Enforcement Act took effect.
A was subsequently sentenced on appeal to six months' imprisonment, a heavier sentence than that of the lower court, and filed a final appeal. However, A ultimately withdrew the final appeal, and as a result, an actual custodial sentence of six months became final.
3. Nonpayment of Child Support, How Should One Respond?
With regard to nonpayment of child support, courts have recently tended to impose actual custodial sentences on parents who habitually fail to pay child support.
Over the past five months, seven out of ten defendants prosecuted on charges of violating the Child Support Enforcement Act received actual custodial sentences.
A legal professional commented, “Courts are increasingly treating the emotional and physical suffering that the custodial parent and the children experience due to the nonpayment of child support as significant,” while also noting, “Because the process of reaching trial is so difficult, there is a need to improve the system so that unpaid child support can be paid in advance by a government agency.”
The following explains the methods available for addressing nonpayment of child support without going to trial.
Order to Comply With Child Support Payment
An order to comply with child support payment (a Korean family-court order compelling performance of obligations such as support or visitation) is a system under which, where child support that must be paid has already been determined but is not being paid, the court intervenes to recommend that the obligation be performed.
An application for an order to comply may be filed even if child support has been left unpaid only once, and the court that receives the application, after confirming both parties' positions, sets a deadline by which the non-custodial parent is to pay the child support.
If the non-custodial parent still fails to pay the child support, the non-custodial parent may be required to pay an administrative fine of up to 10 million won or be subject to detention for up to 30 days.
Application for a Direct Payment Order
A direct child support payment order is a system under which a future child support claim is used as the claim subject to execution, and an attachment order is issued against the wage claim of the non-custodial parent.
In simple terms, it is a system under which a portion of the wages the other party receives is deducted as child support.
Where the non-custodial parent fails to pay child support two or more times without justifiable grounds, an application may be filed.
Order to Provide Security
An order to provide security for child support is a system under which, where the non-custodial parent fails to pay child support, the family court orders the non-custodial parent to provide reasonable security.
Where the non-custodial parent fails to provide security within the prescribed period despite having received an order to provide security, the court may order the non-custodial parent to pay all or part of the child support as a lump sum.
4. Nonpayment of Child Support, Daeryun's Strategy
This article has analyzed a district court judgment that imposed the first actual custodial sentence on a parent who failed to pay child support, and has explained measures available for responding without litigation.
If you are preparing a lawsuit concerning nonpayment of child support, you must prove that there was a prior agreement to pay child support at the time of the divorce. In addition, the child support to be claimed must be reasonably calculated by comprehensively considering factors such as the children's ages and the incomes of both yourself and the other party, so the process can be complex.
The 🔗Divorce Litigation Group of Daeryun Law Firm LLP, composed of attorneys experienced in family matters, provides active assistance to clients preparing litigation related to nonpayment of child support. If you need assistance, you are welcome to request a legal consultation with Daeryun.
