과거 양육비 청구의 성질과 소멸시효에 관한 소고 ―대상결정: 대법원 2024. 7. 18 자 2018스724 전원합의체 결정―

Abstract

The Supreme Court has repeatedly addressed significant issues surrounding claims for retroactive child support, where one parent seeks to recover the costs of raising a child from the other parent for a period before any formal request for child support was made. The decision under review introduces a new principle, particularly with respect to the statute of limitations, distinguishing between the cases where the child is a minor and the cases where the child has reached adulthood. While this new principle respects the existing legal doctrine shaped by previous Supreme Court rulings, it aims to resolve practical injustices that arise from allowing unlimited retroactive claims without time constraints. Although this approach appears to seek a compromise by addressing these issues without fundamentally disrupting the established legal framework, it may seem somewhat contrived in its reasoning. Traditional legal dogmas surrounding parental obligations to care for children or familial duties of support, which have been the basis of past case law, seem to limit a full understanding of the issue. However, claims for past child support should be regarded as a financial right with a compensatory nature, and this perspective should also apply to claims for past support between family members. While the decision attempts to balance the child's welfare with the interests of the other party, it may ultimately fail to fully satisfy either concern. The opposing party, who may be suddenly faced with a large retroactive claim, should be protected through the application of a statute of limitations, which aligns with the purpose of the legal system. The welfare of the child, on the other hand, should be secured not by extending or limiting the statute of limitations, but by implementing institutional mechanisms that ensure timely child support when needed.