〈Case in which the claimant, approximately 16 years after a divorce by agreement, sought past child support and other amounts for the children concerned from the other party, who had not filed a claim for division of property after the divorce by agreement〉[Gong 2024Ha, 1778]

【Holding】

[1] Where only one of the parents has come to raise the child, whether the parent raising the child may claim reimbursement of a reasonable portion of past child-rearing expenses to be shared by the other party (affirmative in principle) / The standard for determining the scope of such sharing in that case / Whether, in determining the scope of sharing of child support, it is necessary to consider the existence and content of any division of property or property settlement made at the time of the parties' divorce, and the relationship between such property division circumstances and the burden of child support (affirmative)

[2] Matters that a court must consider in determining, between divorced spouses, the sharing of past child support for a child who has reached adulthood

【Summary of Order】

[1] Child support, being the expenses required for raising a child, must in principle be borne jointly by the parents, who bear joint responsibility for raising the child. However, where for some reason only one of the parents has come to raise the child, the parent raising the child may claim from the other party the sharing of an appropriate amount of the current and future child support and, furthermore, except where special circumstances exist, may claim reimbursement of a reasonable portion of past child-rearing expenses to be shared by the other party. However, in the case of past child support, if the expenses already incurred before the claim for child support were imposed on the other party all at once, the other party would be made to bear an unanticipated amount at a single time, which may be excessively harsh or contrary to the principle of good faith or the principle of equity. Therefore, past child support need not necessarily be determined on the same basis as child support after the demand for performance, and the court may determine the scope of sharing that it deems appropriate by taking into account various circumstances, such as the circumstances under which one of the parents came to raise the child and the amount of expenses incurred therefor, whether and when the other party became aware of his or her duty of support, whether the expenses were ordinary living expenses required for child-rearing or exceptional, unavoidable, and substantial special expenses (such as medical expenses), and the parties' financial situation, economic capacity, and the fairness of the burden.

In particular, in determining the scope of sharing of child support, whether current and future child support or past child support, with respect to the parties' financial situation, economic capacity, and the fairness of the burden, it is necessary to consider the existence and content of any division of property or property settlement made at the time of the parties' divorce and the relationship between such property division circumstances and the burden of child support, since the division of property upon dissolution of a marital relationship is effected so as to encompass not only a liquidation element between the parties but also a post-divorce support element and the nature of a benefit intended to compensate for mental damage (consolation money). This is because parents who dissolve their marital relationship while having children, in deciding the matter of raising the children after the divorce and the matter of liquidating the property jointly formed during the marriage, reach an agreement on the custodian of the children, child support, division of property, and the like, or decide whether to claim division of property or child support, within a relationship in which these two matters closely affect each other.

[2] Once a child reaches adulthood, the duty of divorced spouses to jointly raise the child terminates, and the question of determining or sharing future child support for the child no longer arises. What remains between the spouses is only the relationship in which the expenses that either party incurred in the past for raising the child must be settled between them. Furthermore, with respect to the sharing of past child support for a child, from the time the child reaches adulthood, an agreement between the relevant parties or an adjudication by the family court comes to have only the meaning of specifically fixing, after confirmation and evaluation of the past child-rearing circumstances and expenses incurred, the amount of past child support that the other party is reasonably deemed to share, and the meaning of discretionarily shaping the amount of child support to be shared as necessary for the welfare of the child disappears. After the child has reached adulthood, there is no need, in determining the amount of past child support to be shared, to go through a process of harmonizing it with the amount of future child support to be shared, which inherently carries the possibility of change, and since the right to past child support cannot be applied to the needs of current or future child-rearing, there is also no need to consider its effect on the welfare of the child. As such, the meaning of fixing and sharing past child support differs between the case where the child concerned has already reached adulthood and the case where the child is a minor. Accordingly, a court determining, between divorced spouses, the sharing of past child support for a child who has reached adulthood needs to examine, on the basis of such difference, the parties' financial situation, economic capacity, the fairness of the burden, and the like, and reflect the results thereof.

【Referenced Statutes】

[1] Article 837 of the Civil Act [2] Article 837 of the Civil Act

【Referenced Precedents】

[1] Supreme Court Order 92Seu21, May 13, 1994 (en banc) (Gong 1994Sang, 1693)
Supreme Court Decision 2019Meu15302, May 14, 2020 (Gong 2020Ha, 1105)
Supreme Court Order 2022Seu613, July 28, 2022 (Gong 2022Ha, 1771)
[2] Supreme Court Order 2018Seu724, July 18, 2024 (en banc) (Gong 2024Ha, 1297)

(Source: Supreme Court Order 2023Seu637, October 8, 2024 [Child Support] > Comprehensive Legal Information, Precedents)