양육비청구권: 추상적 권리와 구체적 권리 - 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정을 중심으로

• 영문명: The Maintenance Claim for Child Custody: Abstract Rights and Concrete Rights : Focusing on the Supreme Court’s Decision on 18 July 2024, 2018su724
• 발행기관: 한국가족법학회
• 저자명: 박근웅(Keunwoong Park)
• 간행물 정보: 『가족법연구』第39卷 1號, 291~324쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.03.31

국문 초록

This article aims to criticise the abstract/concrete rights distinction in existing precedents, centering on the 2024 Supreme Court decision, and to examine several legal relationships related to the right to claim child support. The conclusions are as follows. First, the theory of distinguishing between abstract rights and concrete rights is not reasonable because the criteria for distinguishing are not convincing, are logically questionable, and the effectiveness of the distinction is questionable. It is difficult to accept the idea that the status rights cited by the court as a basis are not subject to the statute of limitations. In addition, since there is a future right to claim child support while the child is a minor, it is difficult to accept that the statute of limitations does not run on claims for past child support. Because each claim for child support has its conceptual independence. The argument that abstract rights do not run the statute of limitations is also questionable. This is because the right to claim child support is a right that is granted to the child-rearing parent without any need for separate consultation or adjudication based on the primary duty of support of the parent. Finally, it is difficult to expect the effectiveness of theory of the abstract/concrete rights distinction. Even if it is an abstract right to claim child support, it is difficult to see that it is always granted with different effects from general rights. In addition, even if it is a concrete right to claim child support, it is not possible to offset it. In conclusion, there are limitations to uniformly explaining the legal relationship of the right to claim child support. Second, the legal relationship regarding the right to claim child support must be derived through benefit-type analysis for each legal relationship, and it is meaningful to subdivide the right to claim child support on that premise. In this article, we have classified the right to claim child support into six categories. We have divided them into whether they are future or past child support claims, and additionally, whether such child support payments have been claimed and whether there has been an agreement or a ruling on child support. And we looked at the legal relationship of child support claims in terms of transfer, waiver, inheritance, and set-off.

목차

Ⅰ. 들어가는 말

Ⅱ. 대법원 2024. 7. 18. 자 2018스724 전원합의체 결정

Ⅲ. 과거 양육비청구권의 법적 성질과 법률관계

Ⅳ. 나가는 말

키워드

양육비청구권 추상적 권리 구체적 권리 2018스724 소멸시효 Maintenance Claim for Child Custody abstract Rights concrete Rights 2018su724 extinctive Prescription