[이혼][공2010상,252]
[1] The meaning of "where there is a serious reason why it is difficult to continue the marriage" under Article 840 subparagraph 6 of the Civil Code and the criteria for determining such "where the marriage has occurred
[2] Whether it constitutes “a serious reason for making it difficult to continue marriage” in a case where there exists a sexual impossibility or other fact impeding the normal fulfillment of sexual demand between husband and wife
[3] The case holding that it is difficult to establish "a serious reason making it difficult to continue the marriage" solely on the basis of the fact that a sex relationship was not established for two years after the marriage
[1] "When there is a serious reason for making it difficult to continue the marriage," which is a reason for divorce under Article 840 subparagraph 6 of the Civil Code, means the case where the marital relationship corresponding to the essence of the marriage that should be based on the difficulty and trust between the couple has been broken down to the extent that it is impossible to recover and compelling the continuation of the marital life has become an unrecoverable pain for one spouse. In determining this, the existence of intention to continue the marriage, the existence of intention to continue the marriage, the liability of the parties to the cause of the failure, the period of marital life, the existence of children, the age of the parties, the guarantee of living after the divorce
[2] Since the marital relationship between husband and wife is an essential element of marriage, in a case where there exists a fact impeding the normal fulfillment of sexual demand between husband and wife, this may be “a serious reason for making it difficult to continue marriage.” Thus, in a case where there exists a refusal of sexual intercourse without justifiable grounds or where normal sexual life is impossible due to incomplete sexual function due to incomplete sexual function, there is a serious reason for making it difficult to continue marriage. However, in a case where there is a possibility of returning to normal sexual life with professional medical treatment and assistance, even if there is a temporary disability of sexual function or sexual contact between husband and wife does not exist in a short time, the sexual defect alone cannot be “a serious reason for making it difficult to continue marriage.”
[3] The case holding that it is difficult to find that there exists "a serious reason making it difficult to continue the marriage" merely on the basis of the fact that a sex relationship has not been established for two years after marriage.
[1] Article 840 subparagraph 6 of the Civil Code / [2] Article 840 subparagraph 6 of the Civil Code / [3] Article 840 subparagraph 6 of the Civil Code
[1] Supreme Court Decision 90Meu1067 delivered on July 9, 1991 (Gong1991, 2158) Supreme Court Decision 2007Meu1690 Delivered on December 14, 2007
Plaintiff (Law Firm Jeong, et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm International, Attorney Kim Jin-soo, Counsel for defendant-appellant)
Busan District Court Decision 2009Reu216 Decided July 10, 2009
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the assertion of grounds for divorce under Article 840 subparag. 2 and 3 of the Civil Act
"When the spouse abandons one party in bad faith" as a ground for divorce under Article 840 subparagraph 2 of the Civil Act refers to cases where the spouse renounces his/her duty as a husband and wife to live together, support, or cooperate with one another without good cause (see Supreme Court Decision 96Meu1434, Apr. 10, 1998). In addition, "when the spouse is extremely maltreated by the spouse" as a ground for divorce under Article 840 subparagraph 3 of the Civil Act refers to cases where the spouse was abused, abused, or abused to the extent that it is deemed that it would be harsh that one spouse would be forced to continue the marital relationship from the spouse (see Supreme Court Decision 97Meu612, Feb. 12, 199).
According to the reasoning of the lower judgment, the lower court determined that there is insufficient evidence to acknowledge the Plaintiff’s assertion that the Defendant refused physical contact or sexual intercourse with the Plaintiff without a clear reason.
In light of the above legal principles and records, although the reasoning of the judgment of the court below is somewhat inappropriate, the above judgment of the court below is just in its conclusion since it is not sufficient evidence to acknowledge that the defendant renounced the duty as a husband and wife to live together, support, and cooperate with one another without justifiable grounds and thrown away another or that the plaintiff was extremely maltreated by the defendant, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.
2. As to the assertion of causes for divorce under Article 840 subparag. 6 of the Civil Act
Article 840 subparagraph 6 of the Civil Act, "if there is a serious reason for making it difficult to continue the marriage" means a case where the communal living relationship of the married couple corresponding to the essence of the marriage which should be based on difficulties and trust between the married couple has been broken down to the extent that it is impossible to recover and compelling the continuance of the marital life becomes irrecoverable for one spouse. In determining this, the existence of intention to continue the marriage, the existence of the party's liability regarding the cause of failure, the period of marital life, the party's age, the party's age, the guarantee of livelihood after divorce, and all other circumstances of the marital relationship should be taken into consideration (see Supreme Court Decision 90Meu1067 delivered on July 9, 191). In addition, since the marital relationship between the married couple is an essential element of the marriage, where there exists a fact impeding the normal fulfillment of sexual demand between the married couple, this can be "serious reason which makes it difficult to continue the marriage," and where it is difficult to continue the marital life in a short time without justifiable reason or where it is difficult to assist the normal sexual function.
According to the reasoning of the judgment below, the court below adopted evidence: (1) the plaintiff and the defendant reported the marriage in advance on September 30, 2005, and (2) the plaintiff and the defendant have a strong marital relationship with the plaintiff on December 17 of the same year, and they left Korea with the United States where the plaintiff had been studying at the time of January 17, 2006, and returned to Korea on August 18, 2007, when the plaintiff had completed the management professional academic degree course (MBA), and had the plaintiff live together with the plaintiff's parents at their home; (3) the plaintiff and the defendant did not have a marital relationship with the defendant for living in the United States as well as the new travel period; and (5) the plaintiff and the defendant did not appear to have a strong marital relationship with the plaintiff around August 31, 2007, and did not appear to have any effort to improve the divorce relationship between the plaintiff and the defendant at the court of first instance to the present day.
In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-ahn (Presiding Justice)