The parental obligation to bear child support obligations※ The scope of the legal information provided in this article
This content provides legal information on the enforcement of the payment of child support and subsidies to facilitate the receipt of child support payments by the parent directly raising any minor child (child support creditor) from the parent who is not directly raising the minor child (child support debtor).
The obligation to rear minor children- Regardless of marital status or that of being charged or not charged with the care of a child, a father or mother shall create the optimum circumstances for the growth of a minor in all fields of life, such as food, clothing, shelter, education, and health care, for the healthy development of the child (Article 3(1) of the Act on Enforcing and Supporting Child Support Payment).
- The parents of a child bear a joint obligation to rear the child, and the costs for the care must in principle be borne jointly by the parents (see Supreme Court Judgment 2019Meu15302 declared on May 14, 2020 참조).
The concept of and obligation to pay child support- The term “child support” means the expenses necessary for protecting and rearing a child who is not an adult (subparagraph 1 of Article 2 of the Act on Enforcing and Supporting Child Support Payment and Article 4 of the Civil Act).
- The noncustodial parent shall faithfully pay child support to the child support creditor determined on the basis of an agreement with the custodial parent, a court judgment, etc. (main body of Article 3(2) of the Act on Enforcing and Supporting Child Support Payment)
· A “noncustodial parent” means a parent who does not directly rear a minor, while a “custodial parent” means a parent who directly rears a minor (subparagraphs 3 and 4 of Article 2 of the Act on Enforcing and Supporting Child Support Payment).
- Provided that the noncustodial parent is a minor incapable of providing support, the parents of that noncustodial parent shall pay child support (proviso of Article 3(2) of the Act on Enforcing and Supporting Child Support Payment).
· “Child support creditor” means a person who actually rears a minor and is, therefore, entitled to claim the payment of child support , such as the designated custodial parent, the legal representative of that child, etc. (subparagraph 5 of Article 2 of the Act on Enforcing and Supporting Child Support Payment).
Q. Can a claim be made for the payment of past child support?
A. If one parent comes to have sole custody, the parent can, in principle, make a claim for the payment of past child support.
-If, because of some circumstance, only one parent comes to rear a child, in the absence of special circumstances, such as the rearing by one parent being due to such rearer’s unilateral and selfish purpose or motivation, unhelpful to the best interests of the child, or causing the other parent to bear the child support is actually contrary to equity, not only may the rearing party make a claim to the other party to bear an appropriate share of the current and future child support; as a parent’s child-rearing obligation arises with the birth of the child in the absence of special circumstances, they may also make a claim for the payment of past child care expenses that are found to be reasonable for the other party to bear (Seoul Family Court Judgment 2008Reu543 declared on May 16, 2008 and Supreme Court en banc Decision 92Seu21 of May 13, 1994).
-Furthermore, the statute of limitations does not apply to the right to past child support. The right to seek the payment of past support of a person who rears a minor child has toward the other party who is jointly obligated to rear the child, originally an abstract legal status found based on family relations, takes on the nature of a clear, independent property right only when converted to a specific claim by consultation between the parties or family court adjudication that determines and creates the details of the child support at its discretion. Therefore, the right to past child support, before being established as a specific claim to payment by consultation between the parties or family court adjudication, is not a property right over which the rearing parent can exercise their right, and the statute of limitations does not apply in that state (Supreme Court Decision 2010Seu85 of August 16, 2011).
-Meanwhile, the obligation to pay past child support is merely an abstract legal status or obligation that has not yet been converted into a specific property right and cannot be inherited (Seoul Family Court Decision 2016Beu30088 of January 22, 2018).