〈Case concerning whether the extinctive prescription of a right to past child support runs before the right is established as a concrete claim for payment by agreement of the parties or by adjudication of the family court〉[Gong 2024Ha, 1297]

【Holding】

Where, as between divorced spouses, one of them claims from the other reimbursement of expenses incurred in raising a minor child in the past, whether the extinctive prescription of the right to past child support runs (affirmative), and the starting point thereof (= the time when the child reaches the age of majority and the duty of child-rearing ends)

【Summary of Order】

[Majority Opinion] Where, as between divorced spouses, one of them claims from the other reimbursement of expenses incurred in raising a minor child in the past, given the nature of the right to past child support, which must be realized for the welfare of the child, the extinctive prescription of that right must be regarded as not running while the child is a minor and the duty of child-rearing continues, and as running from the time when the child reaches the age of majority and the duty of child-rearing ends. The detailed reasons are as follows.

(A) While the child is still a minor, the right, as between divorced spouses, to claim payment of past child support for the child must be regarded as involving special circumstances under which, by the nature of the right, extinctive prescription does not run unless the scope and content of the concrete claim have been determined by agreement of the parties or by adjudication of the family court.

(1) The right, as between divorced spouses, to claim payment of child support for a child is, until the content and scope of the concrete claim are determined by agreement of the parties or by adjudication of the family court, no more than an abstract claim to the effect that one "has the right to demand from the other party a share of the child support," and a claim for payment of a specific amount arises only through agreement between the parties or through an adjudication of the family court that determines the scope and the like of the child support in question in a discretionary and formative manner.

While a minor child is growing up, unforeseen changes in the child-rearing environment may occur due to changes in economic conditions such as rising prices, or changes in circumstances resulting from the custodial parent's employment, unemployment, bankruptcy, and the like, and significant changes may also occur in the level of child support necessary for the child's healthy growth and the maintenance of a stable life, such as upon the child's advancement to a higher school. Depending on changes in family relationships or the outcome of agreements among family members, the custodial parent or the method of child-rearing may even change substantially. An agreement of the parties on child support, or a discretionary and formative adjudication of the family court, concretely determines child support, whose amount and the like are thus not fixed while the child is a minor and which inherently carries the possibility of variation.

(2) Like the right to future child support, the right to past child support, until its concrete content and scope are determined by agreement of the parties or by adjudication of the family court, is difficult to regard as a complete property right that is capable of disposition independently of one's status under family law, since the content of the right has not been determined; moreover, rather than simply seeking the performance of a monetary payment obligation, it primarily has the nature of a right seeking the performance of the duty of child-rearing based on one's status under family law toward a minor child, and therefore, by the nature of the right, extinctive prescription must be regarded as not running.

(3) Regarding extinctive prescription as running against the right to past child support while the child is a minor is inconsistent with the welfare of the child. While the child is a minor, the right to past child support, like the right to future child support, can be regarded as being devoted to the present or future needs of child-rearing, and therefore, for the welfare of the child, it must be regarded as not being extinguished by prescription until the child reaches the age of majority.

(B) Once the child reaches the age of majority and the duty of child-rearing ends, unless the scope and content of the concrete claim have been determined by agreement of the parties or by adjudication of the family court, the extinctive prescription of the right to claim payment of past child support for the child must be regarded as running from the time the child reaches the age of majority.

(1) The right to past child support has the substance of a right to indemnity, and once the child has reached the age of majority and the duty of child-rearing itself has ended, there is no difference whatsoever in its essential nature as a property right, even when compared with an ordinary monetary claim recognized on the basis of factual relationships formed in the past.

Therefore, it cannot be said that the right to past child support does not constitute a claim or property right against which extinctive prescription may run, merely because its content and scope have not yet been determined by agreement of the parties or by adjudication of the family court.

(2) Once the child reaches the age of majority, the characteristic of the right to claim payment of past child support as a demand for performance of the duty of child-rearing becomes considerably attenuated, and its characteristic as a pure property right, namely the settlement of, or indemnity for, expenses already incurred, comes fully to the fore; it can thereby be regarded as being in a state substantially equivalent to one in which the content and scope of the right have been determined.

Taking these circumstances into account, from the time the child reaches the age of majority and the duty of child-rearing ends, the right to past child support can be said to become a complete property right capable of disposition independently of one's status under family law, even if the specific amount has not yet been determined by agreement of the parties or by adjudication of the family court, and it can no longer be regarded as exhibiting the nature of a right seeking the performance of the duty of child-rearing based on one's status under family law; therefore, the extinctive prescription of that right must be regarded as running.

(3) If extinctive prescription were regarded as not running against a right to past child support that has not been determined by agreement of the parties or by adjudication of the family court even after the child has reached the age of majority, an absurd result would follow in which a person who has not exercised the right to past child support is placed in a far more advantageous position than a person who actively exercised the right by seeking an agreement or filing for adjudication. If the parent who undertook the child-rearing could claim payment of past child support at any time of his or her choosing, the other party would have to endure an unstable state for a lifetime and would also find it difficult to devise appropriate means of defense, as evidence disappears with the passage of time. Such a result is inconsistent with the purpose of the extinctive prescription system.

[Concurring Opinion of Justice Kwon Young-joon] A claim for past child support, by which a custodial parent who alone supported a minor child seeks reimbursement of the expenses thereof from the other party, is a right subject to extinctive prescription even before agreement or adjudication. Its extinctive prescription must, in principle, be regarded as running from the time the custodial parent incurred the expenses of supporting, that is, raising, the minor child.

[Dissenting Opinion of Justice Noh Jeong-hee, Justice Kim Sang-hwan, Justice Noh Tae-ak, Justice Oh Kyung-mi, and Justice Shin Sook-hee] The right, as between divorced spouses, to claim payment of past child support for a minor child has, before it is established as a concrete claim by agreement of the parties or by adjudication of the family court, the nature of an abstract claim or legal status recognized on the basis of the family relationship. Since a claim for payment of past child support for a minor child is a family non-contentious case of Category Ma as prescribed in Article 2(1), subparagraph 2 (b) of the Family Litigation Act, the family court examining it forms the concrete content and scope of the claim, from a guardianship standpoint for the welfare of the child, as part of its disposition concerning the child's upbringing. Therefore, a claim for past child support, before its concrete content and scope have been formed by adjudication of the family court, cannot be regarded as having the substance of a property right that arises in portions each time child-rearing takes place, nor can the exercise of that right be equated with the exercise of a right to indemnity. The prior precedents, which held on the basis of the legal nature and the like of such a claim for past child support that there is no room for extinctive prescription to run against it, are correct and should be maintained. Furthermore, since the legal nature and the like of such a claim for past child support cannot be said to change merely because the child has reached the age of majority, we cannot agree with the view in the Majority Opinion that extinctive prescription runs from the time the child reaches the age of majority.

【Referenced Statutes】

Articles 162, 166(1), and 837 of the Civil Act; Article 2(1), subparagraph 2 (b) of the Family Litigation Act

【Referenced Precedents】

Supreme Court Decision 2006Meu751, July 4, 2006 (Gong 2006Ha, 1525)
Supreme Court Order 2008Seu67, July 29, 2011 (Gong 2011Ha, 1635) (overruled)
Supreme Court Order 2008Seu113, July 29, 2011 (overruled)
Supreme Court Order 2010Seu85, August 16, 2011 (overruled)
Supreme Court Decision 2008Meu1338, August 25, 2011 (overruled)
Supreme Court Order 2011Seu10, August 26, 2011 (overruled)
Supreme Court Decision 2010Meu2068, 2075, October 13, 2011 (overruled)

(Source: Supreme Court Order 2018Seu724, July 18, 2024 (en banc) [Child Support] > Comprehensive Legal Information System, Precedents)