[이혼및위자료][집31(6)특,227;공1984.2.15.(722),263]
Withdrawal of intention of marriage and effect of reported marriage before submitting the report of marriage (=Invalidity of marriage)
The agreement between the parties to a marriage requires not only the time when a marriage declaration is prepared, but also the time when a report of marriage is filed to a family registry official. Thus, even if a report was prepared in a valid manner under the agreement of the doctor, if one party requested the other party or requested the other party to submit the report prior to the submission of the report, the intention of marriage is withdrawn or the public official in the family registry to withdraw the intention of marriage. Thus, even if the report was submitted, the marriage is null and void.
Articles 812(1) and 815(1)1 of the Civil Act
Claimant
[Defendant-Appellant] Defendant
Seoul High Court Decision 82Reu137 delivered on June 20, 1983
The appeal is dismissed.
The costs of appeal shall be borne by the appellee.
The grounds of appeal are examined.
1. Article 812(1) of the Civil Act provides that a marriage shall take effect by reporting in accordance with the Family Register Act, and adopts the principle of legal divorce, while Article 815(1)1 of the same Act provides that a marriage shall take effect when there is no agreement between the parties to the marriage. In light of these provisions, a marriage requires not only when the parties to the marriage agree, but also when the parties report the marriage report to the public official of the family register. Thus, even if the report is made effective under the agreement of the intention of the parties, if either party requests the other party or the other party to submit the report before the submission of the report, or if the other party withdraws from the intention of marriage or if the latter withdraws from the intention of marriage to the public official of the family register so that the acceptance of the report is not possible, the marriage shall be null and void even if the report was submitted.
According to the facts established by the court below, the claimant and the defendant got a marriage ceremony on August 15, 1981 and completed a marriage report on August 23, 198 of the same year, but at night, the claimant withdrawn the defendant's intention to marry against the defendant, and the defendant's father who was requested to submit the above report, and the defendant must submit the marriage report on August 25 of the same year, and there is no violation of documentary evidence, such as the theory of litigation, on the records and the following evidence preparation. Thus, the marriage between the claimant and the defendant who was reported to the head of the Gu under jurisdiction of August 27 of the same year is null and void, so the judgment of the court below which concluded that the marriage is null and void is just and there is no misapprehension of legal principles, such as theory of litigation, and the case of party members at the time of the lawsuit cannot be a proper precedent in this case, as the case is different.
The theory of the lawsuit is that once a marriage report is received to a family registry official and it is recorded in the family register, it is impossible to dispute the nullity of marriage, and only a divorce claim can be filed, but it is not possible to adopt a divorce suit.
Therefore, without merit, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Jeon Soo-hee (Presiding Justice)