CONTENTS
- 1. Claim for Past Child Support Reimbursement, What Are the Detailed Circumstances?
- - Claim for Past Child Support Reimbursement, What Are the Relevant Statutes?
- 2. Claim for Past Child Support Reimbursement, What Was the First-Instance Court's Determination?
- 3. Claim for Past Child Support Reimbursement, What Was the Appellate Court's Determination?
- 4. Claim for Past Child Support Reimbursement, What Was Daeryun's Strategy?
1. Claim for Past Child Support Reimbursement, What Are the Detailed Circumstances?
Let us review the detailed background of the judgment concerning the claim for past child support reimbursement.
After registering their marriage and having two children, A and B obtained a divorce by agreement and agreed to designate A as the holder of parental authority and the custodian of the children.
After the divorce, A raised the children while engaging in various income-earning activities, but B had little contact with the children and provided no financial support.
In the meantime, one of the children died in a traffic accident, and before claiming the insurance proceeds from the at-fault party's insurance company, A contacted B and requested a settlement under which B would receive only a portion of B's statutory inheritance share.
However, B expressed an intention to receive the full amount of the insurance proceeds available as a legal heir and in fact received 86.7 million won in insurance proceeds.
A then sought assistance from the Korea Legal Aid Corporation to claim past child support for the children, and the Corporation, representing A, filed a lawsuit against B seeking payment of the children's past child support.
In response, B argued that, at the time of the divorce by agreement, A's parents were to raise the children while A was to bear the child support, and that, because A had never once requested child support before filing this lawsuit, A's claim was unjustified.
Claim for Past Child Support Reimbursement, What Are the Relevant Statutes?
A parent or legal representative who actually raises a minor child has the legal right to 🔗claim child support from the party obligated to pay it, and this is provided for in the Civil Act.
▣ Article 837 of the Civil Act (Divorce and Responsibility for the Custody of Children) (1) The parties shall determine matters concerning the custody of their child by agreement.
(3) Where the agreement under paragraph (1) is contrary to the welfare of the child, the Family Court shall order its correction, or shall, ex officio, determine the matters necessary for the custody, taking into account the child's intention and age, the parents' financial situation, and other circumstances. (4) Where no agreement on the matters concerning custody is reached or where such agreement cannot be reached, the Family Court shall, ex officio or upon the request of a party, make a determination on these matters. In such a case, the Family Court shall take into account the circumstances under paragraph (3). (5) Where the Family Court deems it necessary for the welfare of the child, it may, upon the request of the father, mother, child, or prosecutor, or ex officio, modify the matters concerning the custody of the child or make any other appropriate disposition. (6) The provisions of paragraphs (3) through (5) shall not bring about any change in the rights and duties of the parents other than in the matters concerning custody. |
2. Claim for Past Child Support Reimbursement, What Was the First-Instance Court's Determination?
The first-instance court that heard the case concerning the claim for past child support reimbursement granted A's claim in part.
The court held that "it is difficult to recognize any circumstance under which B was unable to raise the children against B's own will, and, considering that B had lived without any particular contact with the children or any financial support and, upon the child's death, received insurance proceeds from the insurance company as a legal heir, B must bear the past child support."
However, recognizing the need for a reduction in accordance with the principle of good faith*, the court set the past child support at 65 million won.
Against this, the Corporation filed an appeal, arguing that "B had already received a substantial amount of insurance proceeds, and, since the insurance company of the at-fault party in the child's traffic accident was asserting an exemption for paid transportation under the policy terms during the appellate proceeding and B was expected to receive additional substantial insurance proceeds, there was no need for a reduction."
*Need for a reduction under the principle of good faith: the need to reduce a party's burden, in accordance with the principle of good faith, where one party bears an unreasonably excessive burden in the course of performing a contract or a legal obligation
3. Claim for Past Child Support Reimbursement, What Was the Appellate Court's Determination?
The appellate court that conducted the appeal concerning the claim for past child support reimbursement accepted the Corporation's argument and granted A's claim for past child support in part.
The appellate court determined that "considering that B received a large amount of insurance proceeds from the insurance company solely on the ground of being the legal heir of the deceased child, and that B has been steadily engaged in income-earning activities, it is reasonable to set the past child support at 100 million won."
4. Claim for Past Child Support Reimbursement, What Was Daeryun's Strategy?
In connection with the claim for past child support reimbursement, we analyzed the District Court's judgment ordering payment of past child support against a birth mother who, after failing to pay any child support for 14 years following the divorce, received tens of millions of won in insurance proceeds when her child died in a traffic accident.
This judgment suggests that not having claimed child support over a long period cannot be regarded as a waiver of the right to claim child support.
Recently, the National Assembly passed an amendment to the Civil Act denying inheritance rights to parents who have neglected their duty of support, known as the "Goo Hara Act."
Accordingly, where a lineal ascendant, such as a parent or grandparent, has seriously breached the duty of support toward the decedent or has committed a serious criminal act, it has become possible to express, by will, an intention to have that person lose the right of inheritance.
The judgment above and the passage of the Goo Hara Act may be regarded as an important decision that sounds a warning to parents who seek to assert only an heir's rights while neglecting their duty of support toward their children.
The 🔗Divorce Litigation Group of Daeryun Law Firm LLP assists clients with child support litigation through teams of 3 to 20 members, including attorneys experienced in child support litigation.
If you are facing difficulties in this regard, you are welcome to entrust your case to Daeryun Law Firm at any time.
