【Holding】
[1] Legal nature of a performance order under Article 64 of the Family Litigation Act, and whether a performance order may change the content of an obligation established by a judgment, etc. or create a new obligation for the obligor (negative) / Whether a family court may, in the form of a performance order, make a disposition that results in effectively extinguishing or changing the right or the effect of the title of execution with respect to the portion of an obligation established by a judgment, etc. that the obligor has not performed (negative)
[2] Where the content of a performance order concerning the obligation to allow visitation with a child brings about substantially the same result as a disposition restricting, excluding, or changing the visitation right established by a judgment, etc., whether it falls outside the scope of a performance order under Article 64 of the Family Litigation Act and is impermissible (affirmative)
【Summary of Order】
[1] Pursuant to Article 64 of the Family Litigation Act, where a person who is obligated by a judgment, adjudication, protocol of conciliation, decision in lieu of conciliation, or protocol on the bearing of child support (hereinafter "judgment, etc.") to perform an obligation such as payment of money, delivery of an infant, or allowing visitation with a child fails to perform the obligation without justifiable grounds, the family court may, upon application by a party, order the person to perform the obligation within a certain period. Such performance order is a system for securing performance under the Family Litigation Act that urges the performance of an obligation, such as an obligation to pay money, established by a judgment, etc., through sanctions such as an administrative fine or detention under Articles 67(1) and 68 of the Family Litigation Act. Although this is a method whereby the adjudicating body that determined the existence of the right itself urges performance of the obligation, without strictly separating the body that determines the existence of a right from the body that realizes the determined right, it is reasonable to view that it is no different from compulsory execution under the Civil Execution Act in that it is not a procedure for determining the existence of a right but part of a procedure for realizing an already established right. Therefore, a performance order under Article 64 of the Family Litigation Act may not change the content of an obligation established by a judgment, etc. or create a new obligation for the obligor. Furthermore, since the effect of a performance order is separate from the effect that a judgment, etc. on payment of money, delivery of an infant, or visitation with a child originally has as a title of execution, a performance order may be issued with respect to only part of the obligation established by the judgment, etc. that the obligor has not performed by the time the performance order is issued (see Article 123 of the Family Litigation Rules), but the family court may not, in the form of a performance order, make a disposition that results in effectively extinguishing or changing the right or the effect of the title of execution with respect to the unperformed portion of the obligation established by the judgment, etc.
[2] In the case of a visitation right with a child established by a judgment, adjudication, protocol of conciliation, decision in lieu of conciliation, or protocol on the bearing of child support (hereinafter "judgment, etc."), the family court may, where necessary for the welfare of the child, restrict, exclude, or change visitation upon a party's request or ex officio (Article 837-2(3) of the Civil Act); such a disposition, as a case concerning the disposition or the restriction, exclusion, or change of a visitation right under Article 2(1)2(b)3 of the Family Litigation Act, falls under Ma-class family non-contentious cases and must proceed in accordance with the procedures envisaged by the Family Litigation Act, such as the principle of conciliation first and mandatory hearing in adjudication proceedings, and the content of a visitation right established by a judgment, etc. may be finally changed by such adjudication. Therefore, if the content of a performance order under Article 64 of the Family Litigation Act issued with respect to the obligation to allow visitation with a child brings about substantially the same result as a disposition restricting, excluding, or changing the visitation right under Article 2(1)2(b)3 of the Family Litigation Act, it falls outside the scope of a performance order under Article 64 of the Family Litigation Act and is impermissible.
【Referenced Statutes】
[1] Articles 64, 67(1), and 68 of the Family Litigation Act; Article 123 of the Family Litigation Rules [2] Article 837-2(3) of the Civil Act; Articles 2(1)2(b) and 64 of the Family Litigation Act
【Referenced Precedents】
[1] Supreme Court Order 2015Eu26, February 11, 2016 (Gong2016Sang, 421)
Supreme Court Order 2025Eu517, May 23, 2025 (Gong2025Ha, 1142)
(Source: Supreme Court Order 2026Eu552, August 24, 2026 | Judicial Information Disclosure Portal, Supreme Court of Korea)
2026. 10. 26. · By Attorney Dongwoo Shin
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