Compelled payment of child support
How to compel child support payment
- If child support is not being paid, payment may be compelled by means such as a direct child support payment order, offer of security, lump-sum payment order, implementation order, compulsory execution, etc.
Support for enforcing child support payment
- A child support claimant who is not being paid child support by the child support debtor, despite such support being finalized by agreement or court judgment, may apply to the Child Support Agency (Article 7(1) of the Act on Enforcing and Supporting Child Support Payment) for legal aid necessary to enforce child support payment as follows (Articles 11(2) and 18(1) of the Act on Enforcing and Supporting Child Support Payment):
· Application for property statement or property inquiry
.
· Application for an order for direct payment of child support
· Application for an order to offer security for child support
· Application for a child support implementation order
· Application for an attachment order
· Application for a collection or assignment order
· Application for a detention order, etc.
- A fostering parent may also apply to the Child Support Agency for support to collect amounts to be paid and otherwise collect against the debtor’s property (Articles 11(2) and 19(1) of the Act on Enforcing and Supporting Child Support Payment).
Emergency assistance for temporary child support
- A child support claimant who has applied for legal and other aid for a child support claim and enforcement of payment may apply to receive emergency assistance for temporary child support (hereinafter “emergency support”) if the child support debtor’s failure to perform the child support payment has endangered or may endanger child welfare (Article 14(1) of the Act on Enforcing and Supporting Child Support Payment).
- If any of the following applies to the person eligible for support, emergency support may be provided for up to 9 months (may be extended by up to 3 months if additional support is required) (the main bodies of Article 14(2) and (3) of the Act on Enforcing and Supporting Child Support Payment; Article 8(1) of the Enforcement Decree of the Act on Enforcing and Supporting Child Support Payment).
· The child support claimant belongs to a household whose income is 50% or less of the standard median income defined in Subparagraph 11 of Article 2 of the National Basic Living Security Act.
· The child support claimant is eligible for support under Articles 5 and 5-2 of the Single-Parent Family Support Act and meets the standard determined and publicly notified by the Ministry of Gender Equality and Family.
- Provided that if the eligible person is receiving identical protections under the National Basic Living Security Act and the Emergency Aid and Support Act, emergency assistance under the Act on Enforcing and Supporting Child Support Payment is unavailable to the extent of such protections. Also, emergency assistance is immediately terminated when the child support debtor pays child support (provisos to Article 14(2) and (3) of the Act on Enforcing and Supporting Child Support Payment).
※ Details on support for enforcing child support payment and emergency assistance for temporary child support are found in the Child Support Agency website (
www.childsupport.or.kr).
Order for direct payment of child support
Order for direct payment of child support
- Where a person liable to pay child support periodically (hereinafter “child support debtor”) fails to pay the child support 2 or more times without just cause, the family court may, upon an application by a claimant with execution title for periodical child support payments (hereinafter “child support claimant”), order a person liable for withholding income tax (hereinafter “income tax withholding agent”) who is obligated to make periodic wage payments to the child support debtor to directly pay child support to the child support claimant by deducting the child support regularly from the child support obligor’s salary (Article 63-2(1) of the Family Litigation Act).
· An application for an order for direct payment of child support is made by listing the following matters in the application and attaching an executable authentic copy (Article 120-4 of the Family Litigation Rule):
1. Indication of the child support claimant, child support debtor, income tax withholding agent, any representatives, and the minor child;
2. Indication of the execution title;
3. The specific details of the failure to pay child support 2 or more times, and of the regular child support claim the applicant is seeking direct payment for and is not due yet; and
4. If the order for direct payment is only being sought for part of the child support claim indicated in the execution title or for part of the claim, such limited scope.
· If the party or an interested person violates the order for direct payment of child support without just cause, the family court, conciliation council, or judge in charge of conciliation may, by ruling, impose an administrative fine not exceeding KRW 10 million either ex officio or by the claimant’s request (Article 67(1) of the Family Litigation Act).
- If there is a cause to find that the order for direct payment of child support may not be achieved, the family court may cancel the order for direct payment of child support at the request of the child support claim. In such an event, the order for direct payment of child support loses prospective effect (Article 63-2(3) of the Family Litigation Act).
- The family court must serve the child support debtor and tax withholding agent with the order for direct payment of child support or the order canceling it (Article 63-2(4) of the Family Litigation Act).
- An immediate appeal may be filed from a trial on an order for direct payment of child support or the order canceling it by submitting within 1 week of being notified of the result a written appeal to the family court who conducted the trial (Article 63-2(5) of the Family Litigation Act; Article 120-6 of the Family Litigation Rule).
- If the child support debtor changes jobs or the debtor’s main source of income otherwise changes, the tax withholding agent must notify the family court within 1 week of such change (Article 63-2(6) of the Family Litigation Act).
Order for offer of security and lump-sum payment
Order for offer of security and lump-sum payment
- When the family court orders regular child support payments, it may order the child support debtor to offer reasonable security to enforce the payment or when the debtor fails without just cause to make the payments (Article 63-3(1) and (2) of the Family Litigation Act).
· A child support claimant who applies for an offer of security because of the child support debtor’s failure without just cause to pay must submit, to the family court where the minor child’s general forum is located, an application indicating the following matters and inscribed and sealed or signed by the applicant or a representative (Articles 120-7 and 120-8 of the Family Litigation Rule).
1. Indication of the applicant, respondent, any representatives, and the minor child;
2. Indication of the execution title and its substance;
3. The amount of the monetary claim the debtor has failed to pay and for how long; and
4. The purport and cause of the application.
· The child support debtor may file an immediate appeal of the foregoing order for offer of security within 1 week of being notified of the result (Article 63-3(3) of the Family Litigation Act; Article 120-9(1) of the Family Litigation Rule).
· The immediate appeal stays the execution of the order for offer of security (Article 120-9(2) of the Family Litigation Rule).
- If the child support debtor violates the order for offer of security without just cause, the family court, conciliation council, or the judge in charge of conciliation may, by ruling, impose an administrative fine not exceeding KRW 10 million either ex officio or at the claimant’s request (Article 67(1) of the Family Litigation Act).
- If the child support debtor fails to offer the security within the required period, the family court may, at the request of the child support claimant, order all or part of the child support to be paid in a lump sum (Article 63-3(4) of the Family Litigation Act).
· An application requesting the lump-sum payment of child support is made in writing, indicating the following matters and inscribed and sealed or signed by the applicant or a representative (Articles 120-7 and 120-10 of the Family Litigation Rule).
1. Indication of the applicant, respondent, any representatives, and the minor child;
2. Indication of the execution title and its substance;
3. Indication of the order for offer of security and its substance; and
4. The purport and cause of the application.
· If a person who received an order to pay child support in a lump sum fails without just cause to perform the obligation within 30 days, the family court may, by ruling, detain the obligor for up to 30 days until the obligation is performed, at the request of the child support claimant (Article 68(1)3 of the Family Litigation Act).
√ If a child support debtor fails to perform the child support debt despite being subjected to a detention order under Article 68(1)3 of the Family Litigation Act and meets the following requirements, the Minister of Gender Equality and Family may request that the Minister of Justice prohibit the debtor to leave the Republic of Korea according to Article 4(3) of the Immigration Act by the deliberation and resolution of the Deliberative Committee on Payment of Child Support (Article 21-4(1) of the Act on Enforcing and Supporting Child Support Payment; Article 17-3(1) of the Enforcement Decree of the Act on Enforcing and Supporting Child Support Payment).
1. The amount of the child support debt is at least KRW 50 million; and
2. The child support debtor has been abroad at least 3 times during the most recent year as of the day the departure prohibition is requested, or the overseas stay has been at least 6 months long with a child support debt of at least KRW 30 million.
√ If the cause for the prohibition of departure has been resolved by payment of the child support debt, compulsory execution on the child support debtor’s property, etc., the Minister of Gender Equality and Family must immediately request that the Minister of Justice lift the prohibition on departure (Article 21-4(3) of the Act on Enforcing and Supporting Child Support Payment).
· An immediate appeal may be filed for the foregoing detention ruling (Article 68(2) of the Family Litigation Act).
Implementation order
What is an implementation order?
- An implementation order refers to a family court’s order to an obligor at the request of a party to perform, within a set period, financial obligations such as the payment of money, giving over a child, or permitting visitation according to a judgment, adjudication, conciliation protocol, decision instead of conciliation, or child support order where the performance of such obligation is not being performed without just cause (Article 64(1) of the Family Litigation Act).
Application for an implementation order for failure to pay child support
- When the other party fails to pay child support, an implementation order may be sought at the family court responsible for the judgment, adjudication, or conciliation that ordered the child support payment to compel payment.
Sanctions for noncompliance with the implementation order
- If the child support debtor obligated to pay child support fails to pay child support after receiving the implementation order, the family court may compel payment through the following:
· Imposition of administrative fines
√ If the obligor fails without just cause to pay child support after receiving an implementation order, the family court, conciliation council, or judge in charge of conciliation may, by ruling, impose an administrative fine not exceeding KRW 10 million, either ex officio or by the claimant’s request (Article 67(1) of the Family Litigation Act).
· Detention
√ If a child support debtor fails to pay child support despite receiving a detention order because of such a failure, the Deliberative Committee on Payment of Child Support may deliberate and resolve at the request of the child support creditor to disclose the following information for 3 years from the date of disclosure (the main body of Article 21-5(1) of the Act on Enforcing and Supporting Child Support Payment; Article 17-4(1) of the Enforcement Decree of the Act on Enforcing and Supporting Child Support Payment).
1. The child support debtor’s name, age, and profession;
2. The child support debtor’s address or workplace (up to the building number and the road name address in Subparagraphs 5 through 7 of Article 2 of the Road Name Address Act); and
3. How long the debtor failed to pay for child support and the amount of the child support debt.
√ However, information is not disclosed in the following circumstances (proviso to Article 21-5(1) of the Act on Enforcing and Supporting Child Support Payment; Article 17-4(2) of the Enforcement Decree of the Act on Enforcing and Supporting Child Support Payment).
1. The child support debtor is deceased or declared missing under Article 27 of the Civil Act;
2. The child support debtor has paid at least half of the child support debt and submitted a payment plan for the rest, leading the Committee to find a need for exclusion from the disclosure list;
3. The child support debtor has received a decision to initiate rehabilitation procedures under the Debtor Rehabilitation and Bankruptcy Act or a declaration of bankruptcy; or
4. The Committee finds that there is no gain to disclose personal details, etc.
√ A child support debtor who fails without just cause to pay for child support within 1 year of receiving a decision ordering detention is subject to imprisonment not exceeding 1 year or a fine not exceeding KRW 10 million. Provided that the debtor cannot be indicted against the victim’s express will (Article 27(2)2 of the Act on Enforcing and Supporting Child Support Payment).
※ What is detention?
· Detention refers to holding an obligor who has violated a court order, etc. in a detention facility such as a police holding cell, penitentiary, detention center, etc. by a court ruling at the request of a claimant for a detention trial (Article 70 of the Family Litigation Act; Articles 130 and 132 of the Family Litigation Rule; and Article 23(1) of the
Trial Rule for the Maintenance of Order, Etc., in Court). The detention is concluded and the obligor is released if the obligor performs the obligation during detention (Article 137(2) of the Family Litigation Rule).
Compulsory execution
What is compulsory execution?
- Compulsory execution refers to forcing the implementation of an obligation by state power where the other party fails to perform it. For instance, if an obligor who must pay child support fails to pay, the claimant can force the obligor’s real estate to be auctioned to satisfy the child support debt.
Application for compulsory execution for failure to pay child support
- When the other party fails to pay child support, the claimant may be granted an execution clause permitting compulsory execution based on an execution title (e.g., judgment, conciliation protocol, compromise protocol, etc.) to apply for compulsory execution on the other party’s property, through which auction measure the child support payment is received (Articles 28, 39, 56, and 90 of the Civil Execution Act; Article 41 of the Family Litigation Act).