부부간 부양청구권과 양육비청구권 - 대법원 2017. 8. 25. 자 2014스26 결정을 중심으로 -

Abstract

The obligation of marital mutual support is based on Article 826 of the Civil Act. Majority opinion and precedents divide the obligation of support in the civil law into the primary obligation to maintain life' and the secondary obligation to assist life'. The obligation of marital mutual support belongs to the former along with the parents obligation to support children. And other obligation to support relatives belongs to the latter. This types of division is basically valid because Article 826 and 833 on marital obligations have the characteristics of special provisions on the provisions of Article 974 on obligation to support relatives. Some opinions and precedents suggest that the right of support is only the abstract right before it’s contents are settled by a agreement of the parties or court judgment, but the specific right is established by the agreement or the judgement. However, the right of support can be established without the agreement or judgement if it meets the requirements, and the judgement is only the confirm of the right. There is a divergence of opinion on whether the husband/wife can claim the support for the past, and the precedent takes position that it can be accepted only when the claim is made before. However, the obligation of marital support is established when it meets the requirements, such as the existence of a marital relationship, the need for the support, and the ability to support, regardless of whether the existence of claim by whom has the right or the awareness by whom has the obligation. Therefore, the support for the past can be claimed naturally. The obligation of parents to support children is established in accordance with Article 913 from the time the child was born. Thereafter, even if he or she loses the custody right due to the divorce, annulment of marriage and perception of illegitimate child, his or her obligation should not be affected. There are two different opinions on the legal characteristics of the right to claim for child support. One of them is that the right belongs to the child but it is exercised by one of the parents who rearing the child. The other is that the right is his/her own right of the parents who rearing the child. It is a right of the parents rearing the child, and his or her claim of child support for the past is a kind of claim for reimbursement. Precedents states that if one of the parents has cared children in the absence of a agreement or judgment on the child support, the cost of child support should be reimbursed by the other parent who does not support the child. And the precedent states that the court can reduce the reimbursement if the full reimbursement is too harsh for the not rearing parent. However, there is no need to specially protect the parent who does not support children, and the protection of him/her is sufficient by applying the statute of limitations. The precedent states that statute of limitations does not proceed until the right of child support is settled by agreement of parents or court judgment and is converted into the specific right. However, the statute of limitations for the right of child support proceed from the time the child support is carried out. 10-year statute of limitations is applied to the right of child support. But if the child support should be paid regularly within one year, 3-year statute of limitations is applied.