[이혼및재산분할등][공2004.10.15.(212),1668]
[1] In a case where one of the married couple is transferred to an incurable mental disorder, whether it constitutes a cause for judicial divorce under Article 840 subparagraph 6 of the Civil Code (affirmative with qualification)
[2] Whether one side of the married couple can immediately file a claim for divorce on the ground that one side of the married couple seems to have a mental symptoms (negative)
[3] The case rejecting the claim for divorce on the ground that one of the married couple's mental hospitals was returned to a mental hospital but the symptoms of the mental disease cannot be deemed as bad
[1] A family is not simply a community of only the couple, but has a function to protect all the members of the family, including their children, and one side of the married couple has returned to an incurable mental disorder. The disease is not simply nursing or unexpected, but constantly demanding the whole members of the family to make a constant mental and physical sacrifice. If many financial expenditures are required in light of the economic situation and the other family's suffering is in a state where the other family's suffering is unknown at any time, the other spouse cannot be forced to refer to the other spouse without any limit according to the other spouse's miscellaneous duty, so this case constitutes a cause of judicial divorce under Article 840 subparagraph 6 of the Civil Code.
[2] Even if there is a difficulty in maintaining the marriage relationship by showing mental symptoms, the other spouse is obligated to perform as a love and sacrifice for treatment of the disease, and if recovery is possible, the other spouse shall not immediately claim a divorce on the ground that it is difficult for the other spouse to continue the marriage relationship due to the symptoms of mental illness without considering such efforts properly and by asserting that it is difficult to continue the marriage relationship due to symptoms of mental illness.
[3] The case rejecting the claim for divorce on the ground that one of the married couple's mental hospitals was returned to a mental hospital but the symptoms cannot be deemed as bad
[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] [2] [3] Supreme Court Decision 95Meu90 delivered on May 26, 1995 (Gong1995Ha, 2266) / [1] Supreme Court Decision 90Meu446 delivered on January 15, 1991 (Gong191, 748)
Plaintiff (Attorney Park Byung-hee, Counsel for the plaintiff-appellant)
Defendant (Attorney Seosan-sung et al., Counsel for defendant-appellant)
Seoul High Court Decision 2003Reu1366 delivered on April 13, 2004
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
A family is not simply a community of only a couple, but has a function to protect all the members of the family, such as their children, and one side of the married couple has returned to an incurable mental disorder. The disease is not simply nursing or unexpectedly predicted, but constantly demanding the whole members of the family to make a constant mental and physical sacrifice. In light of economic circumstances, if a large amount of financial expenditure is required and the other family's suffering is in a state where the other family does not end at any time, the other spouse cannot be forced to be able to refer to the other spouse without any limitation according to the other spouse's live duty. In this case, even if one side of the married couple has difficulty in maintaining live divorce under Article 840 subparagraph 6 of the Civil Code, it is difficult to say that it constitutes a cause for judicial divorce under Article 840 subparagraph 6 of the Civil Code. However, even if it is difficult for the other spouse to present his or her mental illness, it is difficult to say that he or she has a duty to cooperate with the other spouse in a marital relationship with the other spouse 95.
Examining the records in light of the above legal principles, insofar as it is difficult to view that the plaintiff's mental symptoms and abnormal behavior caused by the mental disorder were committed by the defendant, the contents of the measures taken by the plaintiff for the treatment of the defendant, the amount of the defendant's mental disorder and abnormal behavior caused thereby, the fact finding by the court below as to the plaintiff's mental disorder and the economic ability of the plaintiff and the defendant's mental disorder, etc., and the defendant's mental disorder in living a marital life, it is reasonable to require the plaintiff to further perform his duty of living, care, and cooperation between the couple with each other and with his best effort to maintain the marital life by protecting the other party in distress and in person. Thus, the court below's decision that the plaintiff's mental and economic sacrifice, which is not limited to the plaintiff's request for further fulfillment of the duty of living, care, and cooperation between the parties, is not too harsh. It is not erroneous in the misapprehension of the rules of evidence, or in the misapprehension of legal principles as to the causes for judicial divorce under Article 840 of the Civil Act.
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 Yoon Jae-chul (Presiding Justice)