Recently, a man who had disclosed the list of “bad fathers” refusing to pay child support after divorce was given a decision of not guilty for the defamation as his action was for solely for the public interest. As the case shows, it has been reported that many parents who are legally obligated to pay child support after divorce do not perform their obligations in Korea, and it is regarded as a serious problem. I’d like to introduce the ways to get child support from a bad parent in this posting.

First, it is possible to file for “Order for Implementation”. Then the court will order the parent who has an obligation to pay for child support based on court decision or conciliation protocol in case he or she does not pay for it without justifiable reasons. Please refer to the following article of Family Litigation Act (hereafter referred to as the “Act”.)

Article 64 (Order for Implementation)

(1)         When a person who is required to implement an obligation falling under any of the following subparagraphs pursuant to the judgement, adjudication, conciliation protocol, decision substituting conciliation or child support order fails to perform the obligation without any justifiable reason, a family court may, upon request of the party concerned, order the person to perform the obligation within a specific period:

1.          Obligation related to property, such as payment of money;

2.          Obligation to hand over an infant;

3.          Obligation to allow visitation to his/her children.

(2)         In issuing an order under paragraph (1), a family court shall, unless any special circumstance exists, examine in advance the party concerned, and advise him/her to perform the obligations, and make a notification of the sanction prescribed in Articles 67 (1) and 68.

[This Article Wholly Amended by Act No. 10212, Mar. 31, 2010]

Second, filing for “Order for Direct Payment of Child Support” may be a viable option. The bad parent’s employer will pay for the child support deducting it from his or her monthly income. Please refer to the article of the Act as follows;

Article 63-2 (Order for Direct Payment of Child Support)

(1)         Where a person liable to pay child support periodically (hereinafter referred to as “child support obligor”) fails to pay the child support not less than two times without any justifiable reasons, the family court may, upon an application by an obligee (hereinafter referred to as “child support obligee”) having source of right to execute the bond for periodically payable child support, order a person liable for withholding income tax (hereinafter referred to as “income tax withholding agent”), who bears periodic benefit obligation for a child support obligee, to directly pay the child support to the child support obligee by deducting the child support regularly from the child support obligor’s salary.

(2)         An order for direct payment under paragraph (1) (hereinafter referred to as “order for direct payment of child support”) shall be valid as are a seizure order and an assignment order under the Civil Execution Act simultaneously issued and the Civil Execution Act concerning a seizure order and an assignment order shall apply mutatis mutandis to payment orders: Provided, That an order for direct payment of child support may be issued for a relevant child support bond whose expiration date has not yet arrived, notwithstanding Article 40 (1) of the Civil Execution Act.

(3)         Where any circumstance is acknowledged to exist that the purpose of order for direct payment of child support may not be achieved, a family court may cancel an order for direct payment of child support upon an application of a child support obligee. In such cases, an order for direct payment of child support shall become invalid for the future.

(4)         A family court shall deliver orders under paragraphs (1) and (3) to a child support obligor and an income tax withholding agent.

(5)         An immediate appeal may be made for a trial concerning applications under paragraphs (1) and (3).

(6)         Where any reason for change occurs in the main source of income, such as job change of a child support obligor, the income tax withholding agent shall notify the relevant family court of the fact of change within one week from the date such reason has occurred.

[This Article Wholly Amended by Act No. 10212, Mar. 31, 2010].

Third, it is possible to file for “Order to Offer Security”. The relevant article is as follows;

Article 63-3 (Order, etc. for Offer of Security)

(1)         A family court may, when it allows a child support to be paid as money payable periodically, order a child support obligor to provide a considerable security to guarantee its implementation.

(2)         When a child support obligor fails to perform its liability without justifiable reasons, a family court may order the child support obligor to provide a considerable security upon an application by a child support obligee.

(3)         An immediate appeal may be made against a decision under paragraph (2).

(4)         When a child support obligor fails to offer a security within the period for providing the security under paragraphs (1) and (2), a family court may order to pay the child support, in whole or in part, upon an application by a child support obligee.

(5)         Article 64 (2) shall apply mutatis mutandis to orders under paragraphs (2) and (4).

(6)         Articles 120 (1), 122, 123, 125 and 126 of the Civil Procedure Act shall apply mutatis mutandis to securities under paragraphs (1) and (2) within the extent not contrary to its nature.

[This Article Wholly Amended by Act No. 10212, Mar. 31, 2010]

Please do not forget that the ordered person may be penalized or detained if he or she does not follow the order. Please refer to the article of the Act as follows;

Article 67 (Sanctions against Non-performance of Liability)

(1)         When the party concerned or interested person violates any order under Article 29, 63-2 (1), 63-3 (1) or (2), or 64 or a disposition under Article 62, without any justifiable reasons, a family court, conciliation committee, or judge in charge of conciliation may, by ruling, punish the party or interested person by a fine for negligence not exceeding ten million won, either ex officio, or upon request of the rightful claimant.

(2)         When a person who receives an order for inspection under Article 29 violates again, without any justifiable reason, the order even after being subject to sanctions under paragraph (1), a family court may, by ruling, punish the offender by detention until a performance of liability, within the limit of 30 days.

(3)         An immediate appeal may be made against a ruling under paragraph (2).

[This Article Wholly Amended by Act No. 10212, Mar. 31, 2010]  

Additionally, if there is a need to increase or decrease of the amount of the child support on the court decision or conciliation protocol, it is advisable to file for the adjustment of the child support to family court.

For further inquiries, please contact me at https://lawyerhwang.com/consultation/  or [email protected].

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