양육비청구권을 자동채권으로 하는 상계 ―법적 성질과 관련하여

Abstract

In this note to a decision of the Korean Supreme Court the author treats the set-off problem concerning maintenance claim, especially that of the divorced spouse for child custody. In the case arose the question whether the divorced spouse can set off her or his maintenance claim for child custody against the other’s claim to property distribution and damages. In the second instance it was denied on the ground that the maintenance claim for child custody could not be disposed of in view of its purpose and nature (cf. §979 of the Korean Civil Code). On the other hand, the Korean Supreme Court supported the opinion that the maintenance claim which had fallen due should be, as a kind of damages claim, subject to creditor’s disposition. On the occasion of this ruling the author examines to what extent the maintenance claim deserves special treatments in law. From the comparative perspective he observes the conceptual-deductive method (Begriffsjurisprudenz) of the dominant opinion, and suggests the interpretation respecting the value judgements contained in the Civil Code and other statutes. In the final analysis, he agrees with the Korean Supreme Court, but supports its opinion with different arguments.