과거 양육비청구권의 소멸시효 - 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정 -

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Supreme Court Decision 2008su67 on July 29, 2011 held that that a past child support claim was not a property right for the caregiver to exercise that right until it was established as a concrete claim for payment by the agreement of the parties or by a judgment of the Family Court, and therefore there is no scope for the extinctive prescription to run in this regard. However, there were criticism against this precedent. However, the Supreme Court en banc decision 2018su724 on July 18, 2024 overruled the precedent and held that the right to seek payment of past child support for a child between a divorced couple while the child is still a minor does not run due to the nature of the right unless the scope and content of the specific claim are determined by the agreement of the parties or by a judgment of the Family Court, but when the child reaches the age of majority and the parenting obligation ends, the extinctive prescription of the right to seek payment of past child support for the child should be deemed to run from the time the child reaches the age of majority. A concurring opinion of this decision argued that the right of a caregiver to support a minor child alone and then seek reimbursement of the expenses from the other party constitutes a right that is subject to the extinctive prescription even before the agreement or judgment. The dissenting opinion of the five justices argued that the precedent that the statute of limitations had no place to run on past child support claims was valid and should be upheld, and that they could not agree with the view that the statute of limitations runs from the time the child reaches the age of majority. In my opinion, the claim of the past child support should be considered to be subject to the extinctive prescription even before the agreement or judgment. The contrary view asserts that it is an abstract legal status and not a property right, so it is not subject to the extinctive prescription. However, it cannot be said that a right is not subject to the extinctive prescription just because it is abstract. Nor it cannot be said that the family law right be subject to the the extinctive prescription. The most important reason of the majority opinion is that that it would not be in the child's best interest to assume that the the extinctive prescription had run. However, once the law provides for the the extinctive prescription for rights, the application of the the extinctive prescription of such rights should not be denied without special grounds. On the other hand, there is also the problem of logical consistency in the majority opinion. The majority opinion argues that the statute of limitations does not run on past claims for child support against a minor child because they are abstract and indeterminate, but the mere fact that the minor child has reached the age of majority does not make it determinate.