Prescription of Claims for Past Child Support, the Limits of an Adult Guardian's Power of Representation, and the Determination of the Presider over Ancestral Rites: Standards from Three Supreme Court Rulings on Family and Inheritance Matters

Question

This brief uses three rulings to set out whether extinctive prescription runs on a claim for past child support brought after the child has reached majority, whether the adult guardian of a victim in a state of unconsciousness may express on the victim's behalf the wish not to have the offender punished in an offence not punishable against the victim's express wishes, and the standards governing the attribution of remains and ashes and the determination of the presider over ancestral rites.

The first issue is the question addressed in Decision 2018Seu724: "When does extinctive prescription begin to run on a claim for past child support for a minor child paid by one party after divorce?" The second issue is the question addressed in Judgment 2021Do11126: "May an adult guardian, on behalf of a victim left unconscious by a bicycle accident, express the wish that the offender not be punished?"

The third issue is the question addressed in Judgment 2018Da248626: "Where no agreement can be reached, do the remains and the property used for ancestral rites belong not to the eldest son but to the eldest among the nearest relatives?" All three rulings ask how the boundaries of the statutory wording and the substantive factors for decision are to be distinguished on the record.

Material to check

First (2018Seu724), this decision addresses whether, and from when, extinctive prescription runs on a claim between divorced spouses for reimbursement of child support for a minor child previously paid by one of them. On the record, the parties' written agreement and the family court's adjudication are examined to determine whether the content and scope of the specific claim were fixed, and the child's date of birth and the date on which the child reached majority are confirmed from the family relations records. On that basis, the starting point is fixed according to the standard that prescription runs from the end of the duty of support.

Second (2021Do11126), this judgment addresses whether, in an offence not punishable against the victim's express wishes, an adult guardian may, on behalf of a victim lacking mental capacity, decide on or withdraw the wish not to have the offender punished. On the record, the permissible scope of representation is confirmed from the adjudication commencing adult guardianship, the scope of the power of representation fixed in that adjudication, and whether the family court granted permission for procedural acts. In addition, the statement of non-desire for punishment submitted before the first-instance judgment was pronounced is compared with the record of receipt of settlement money in order to determine whether it constitutes the victim's own express wishes.

Third (2018Da248626), this judgment addresses how the presider over ancestral rites is to be determined where no agreement is reached among co-heirs. On the record, materials on the course of the negotiations are used to confirm whether agreement failed, and materials on the conduct of the funeral, records of the upkeep of the graves and materials on the deceased's relationships in daily life are gathered. On that basis, the principle giving priority to the eldest among the nearest lineal descendants is applied, while determining whether special circumstances exist, such as where that person lacks the intention or capacity to preside over the rites in the ordinary way.

Possible readings

In Case 2018Seu724, the issues were whether extinctive prescription runs on the right of one divorced spouse to claim reimbursement of past child support from the other, and, if so, its starting point.

In Case 2021Do11126, the issues were whether, in an offence not punishable against the victim's express wishes, an adult guardian may, on behalf of a victim lacking mental capacity, decide on the wish not to have the offender punished or withdraw an expression of the wish for punishment, and whether the same applies where the family court's permission has been obtained.

In Case 2018Da248626, the issue was how the presider over ancestral rites is to be determined where no agreement is reached among the co-heirs.

What the decisions held

Supreme Court en banc Decision 2018Seu724 of 18 July 2024 held: "Where one of two divorced spouses claims from the other reimbursement of expenses incurred in raising a minor child in the past, given the nature of the right to past child support, which must be realised for the welfare of the child, extinctive prescription of that right does not run while the child is a minor and the duty of support continues, and should be regarded as running from the time the child reaches majority and the duty of support ends." Under this decision, a claim for payment of past child support is, before an agreement or a family court adjudication, an abstract claim whose content and scope have not been fixed. While the child is a minor, the claim is adjusted against future child support and has a strong character as performance of a duty of support grounded in family status, so that it is difficult to regard it as a complete property right, and prescription does not run, for the sake of the child's welfare. Once the child reaches majority and the duty of support ends, its character as a settlement of, and recourse for, expenditure comes fully to the fore, and it becomes a complete property right that can be disposed of even before an agreement or adjudication. Accordingly, the Court held that prescription runs from the time the child reaches majority, departing from its earlier precedents, and found that the right to past child support claimed well over 10 years after majority had already been extinguished by prescription.

Supreme Court en banc Judgment 2021Do11126 of 17 July 2023 held: "In an offence not punishable against the victim's express wishes, an adult guardian may not, unless there is an express provision, on behalf of a victim lacking mental capacity, decide on the wish not to have the defendant or suspect punished or withdraw an expression of the wish for punishment." Under this judgment, the wording of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents is structured so that whether punishment is imposed depends on the victim's express wishes. Since neither the Criminal Act nor the Criminal Procedure Act provides any basis for representation, the decision not to seek punishment is regarded as exclusively personal in nature and must be made by the victim personally. For a complaint in an offence prosecutable only upon complaint, Article 236 of the Criminal Procedure Act permits representation, whereas for offences not punishable against the victim's express wishes there is only the provision for application mutatis mutandis in Article 232(3), which the Court interpreted as a deliberate legislative choice. The conclusion is that a settlement reached by an adult guardian is sufficiently taken into account as a sentencing factor and cannot, by way of representation, remove a condition for prosecution.

Supreme Court en banc Judgment 2018Da248626 of 11 May 2023 held: "Where no agreement is reached among the co-heirs, it is most consistent with the principles of reason (jori) to hold that, unless there are special circumstances in which the status of presider over ancestral rites cannot be recognised, the eldest among the nearest relatives of the deceased's lineal descendants takes priority as presider over ancestral rites, regardless of sex or of whether the descendant is legitimate or born out of wedlock." In this judgment, the majority opinion declares that the doctrine of priority for the eldest son established by the 2008 en banc judgment no longer accords with the principles of reason. It explains that discrimination based on sex lacks any reasonable ground and runs counter to the spirit of Articles 11(1) and 36(1) of the Constitution. It considers that ancestral rites now place more weight on commemoration than on continuation of the family line, and that the forms of funerals and ancestral rites have also changed. Its position is that, absent agreement and unless there are special circumstances, the eldest among the nearest lineal descendants takes priority, regardless of sex or of whether the descendant is legitimate or born out of wedlock. The new legal principle applies to successions occurring after the pronouncement of the judgment, but the Court held that it applies retroactively to this case so as to serve as the norm of adjudication.

Practical checklist

First, when does extinctive prescription begin to run on a claim for past child support for a minor child paid by one party after divorce? On the record, the dates on which the written agreement and the family court adjudication became final are compared with the family relations records showing the child's period of minority and the date on which the child reached majority, in order to check the identification of a starting point after the end of the duty of support.

Second, may an adult guardian, on behalf of a victim left unconscious by a bicycle accident, express the wish that the offender not be punished? On the record, whether punishment would be contrary to "the victim's express wishes" and the standard that "it should be held that, in principle, representation is not permitted" are compared with the adjudication commencing adult guardianship, the statement of non-desire for punishment and the record of receipt of settlement money, in order to check whether the decision was made by a representative rather than stated by the victim personally.

Third, where no agreement can be reached, do the remains and the property used for ancestral rites belong not to the eldest son but to the eldest among the nearest relatives? On the record, materials on the course of the negotiations and on the funeral and the upkeep of the graves are checked against the standard that "it is most consistent with the principles of reason to hold that the eldest among the nearest relatives of the deceased's lineal descendants takes priority as presider over ancestral rites, regardless of sex or of whether the descendant is legitimate or born out of wedlock" and against circumstances falling within "cases where that person is found to lack the intention or capacity to preside over the ancestral rites in the ordinary way".

Glossary

Standards for whether extinctive prescription runs on a claim for past child support, and its starting point (2018Seu724): A claim for payment of past child support is, before an agreement or a family court adjudication, an abstract claim whose content and scope have not been fixed. While the child is a minor, the claim is adjusted against future child support and has a strong character as performance of a duty of support grounded in family status, so that it is difficult to regard it as a complete property right, and prescription does not run, for the sake of the child's welfare. Once the child reaches majority and the duty of support ends, its character as a settlement of, and recourse for, expenditure comes fully to the fore, and it becomes a complete property right that can be disposed of even before an agreement or adjudication. Accordingly, the Court held that prescription runs from the time the child reaches majority, departing from its earlier precedents, and found that the right to past child support claimed well over 10 years after majority had already been extinguished by prescription. The factors identified include whether the claim was fixed by agreement or adjudication, whether the duty of support continues, and the welfare of the child.

Who may express the victim's wish not to have the offender punished in an offence not punishable against the victim's express wishes, and whether representation is permitted (2021Do11126): The wording of Article 3(2) of the Act on Special Cases concerning the Settlement of Traffic Accidents is structured so that whether punishment is imposed depends on the victim's express wishes. Since neither the Criminal Act nor the Criminal Procedure Act provides any basis for representation, the decision not to seek punishment is regarded as exclusively personal in nature and must be made by the victim personally. For a complaint in an offence prosecutable only upon complaint, Article 236 of the Criminal Procedure Act permits representation, whereas for offences not punishable against the victim's express wishes there is only the provision for application mutatis mutandis in Article 232(3), which the Court interpreted as a deliberate legislative choice. The conclusion is that a settlement reached by an adult guardian is sufficiently taken into account as a sentencing factor and cannot, by way of representation, remove a condition for prosecution. The factors identified include the victim's express wishes, whether a provision authorising representation exists, and the exclusively personal nature of the wish not to have the offender punished.

How the standard for determining the presider over ancestral rites absent agreement has changed (2018Da248626): The majority opinion declares that the doctrine of priority for the eldest son established by the 2008 en banc judgment no longer accords with the principles of reason. It explains that discrimination based on sex lacks any reasonable ground and runs counter to the spirit of Articles 11(1) and 36(1) of the Constitution. It considers that ancestral rites now place more weight on commemoration than on continuation of the family line, and that the forms of funerals and ancestral rites have also changed. Its position is that, absent agreement and unless there are special circumstances, the eldest among the nearest lineal descendants takes priority, regardless of sex or of whether the descendant is legitimate or born out of wedlock. The new legal principle applies to successions occurring after the pronouncement of the judgment, but the Court held that it applies retroactively to this case so as to serve as the norm of adjudication. The factors identified include the closeness of kinship to the deceased, priority by seniority, and special circumstances in which the status of presider over ancestral rites cannot be recognised.

Sources and limitations

This brief is based only on the original texts of Articles 162, 837, 928, 947, 949 and 1008-3 of the Civil Act, Article 2(1), subparagraph 2, item (b), and Article 46 of the Family Litigation Act, and Articles 10, 11(1) and 36(1) of the Constitution of the Republic of Korea, as published on the National Law Information Center, and on the texts of Supreme Court Decision 2018Seu724 of 18 July 2024, Supreme Court Judgment 2021Do11126 of 17 July 2023 and Supreme Court Judgment 2018Da248626 of 11 May 2023.

It is academic research material setting out general legal principles and standards for reviewing records; it is neither legal advice on any individual case nor an opinion for submission to a court.

Points left open

2018Seu724: If past child support after majority is regarded as a complete property right even before an agreement or adjudication, to what extent does the adjudication retain its constitutive character?

2021Do11126: In a case involving an offence not punishable against the victim's express wishes where the victim lacks mental capacity, in what forum should redress for the harm be addressed?

2018Da248626: Even under the new standard of priority by seniority, how far are cases of manifest unreasonableness to be recognised?

When to reconsider

2018Seu724: The prescription analysis is to be revisited for records in which the amount was fixed by agreement or adjudication, or in which the child is a minor.

2021Do11126: This may be revisited if a record emerges showing a different state of the victim's mental capacity.

2018Da248626: This is to be revisited if the interpretation of the principles of reason concerning the determination of the presider over ancestral rites, or the relevant legislation, changes.

Statutes referred to

• 민법 제162조, 제837조, 제928조, 제947조, 제949조, 제1008조의3
• 가사소송법 제2조 제1항 제2호 나목, 제46조
• 대한민국헌법 제10조, 제11조 제1항, 제36조 제1항

Decisions referred to

• 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정 · Decision ledger
• 대법원 2023. 7. 17. 선고 2021도11126 전원합의체 판결 · Decision ledger
• 대법원 2023. 5. 11. 선고 2018다248626 전원합의체 판결 · Decision ledger

Verification status

The cited provisions (Articles 162, 837, 928, 947, 949 and 1008-3 of the Civil Act; Article 2(1), subparagraph 2, item (b), and Article 46 of the Family Litigation Act; and Articles 10, 11(1) and 36(1) of the Constitution of the Republic of Korea) and the rulings discussed (Supreme Court Decision 2018Seu724 of 18 July 2024, Supreme Court Judgment 2021Do11126 of 17 July 2023, and Supreme Court Judgment 2018Da248626 of 11 May 2023) were checked against the current legislation on the National Law Information Center and the original texts of the Supreme Court rulings as of 15 October 2026. This brief cites only the three rulings listed under the rulings discussed.