[1] The case where the claim for divorce by the responsible spouse may be allowed

[2] In a case where Party A, while frequently drinking her spouse’s frequent marriage and staying together with her spouse while living together with her spouse, gave birth to his/her father while living together with his/her spouse while staying together with his/her spouse, and claiming a divorce against Party B on the ground that family relationship registration is required for the treatment and rearing of his/her married father, the case affirming Party A’s claim for divorce on the ground that there is a serious reason for making it difficult to continue the marriage under Article 840(

[1] If one spouse grants a divorce due to one spouse's heavy illness, such as where there is a concern about the serious aggravation of the disease's age, one spouse's spouse's divorce is faced with a serious mental, social, and economic situation, and thus, it is deemed necessary to continue married life even in light of the other spouse's interests, or where it is deemed necessary to continue married life in light of the other spouse's interests, such as the family, educational, mental, and economic situation of the minor child born between the couple due to the divorce, and there is a concern that the happiness of the child might be seriously infringed upon, barring any special circumstance where maintaining marital relationship for the benefit of the child is essential.

[2] In a case where Gap filed a claim for divorce against Eul because of frequent drinking of his spouse and other serious reasons for making it difficult to continue the marriage under Article 840(6) of the Civil Act, in a case where Gap, while living together with his spouse, who was living together with her spouse while living together with her mother and gave birth to his/her father while living together with her husband, and the family relation registration is required for the treatment and rearing of his/her father-child, the case affirming Gap's claim for divorce on the ground that

[1] Article 840 (6) of the Civil Act / [2] Article 840 (6) of the Civil Act

Plaintiff (Attorney Lee Jae-won, Counsel for the plaintiff-appellant)

Defendant

The principal of the case and one other

Gwangju District Court Decision 2008Dhap69 Decided November 18, 2008

April 17, 2009

1. Revocation of the first instance judgment.

2. The plaintiff and the defendant are divorced.

3. The person having parental authority and the career for the principals of the case shall be the defendant.

4. The Plaintiff shall pay 600,000 won monthly to the Defendant for the child support of the principal of this case from the date this judgment became final to April 3, 2013, and 400,000 won each month from the following day until October 21, 2014.

5. The Plaintiff may interview and negotiate the instant principal as follows.

(a) The fourth day of each month from 12:00 to 18:00 of Sundays 12:00, at a place where the principal of the case wants, may freely meet or travel with the principal of the case, and may live or travel together for seven days each year during the vacation period of January and August.

B. Free telephone conversations, correspondence, and goods exchange with the case principal.

6. The total litigation costs shall be borne individually by each person.

The judgment of the first instance is revoked. The plaintiff and the defendant are divorced.

1. Facts of recognition;

In full view of the purport of the entire pleadings, the following facts can be acknowledged in the evidence Nos. 1, 2, and 1, and 1.

A. On December 12, 1990, the Plaintiff and the Defendant gave birth to the principal of the case who is a minor child as a legally married couple who completed the marriage report.

B. The Plaintiff, while running a matrimonial life with frequent drinking and outpatienting by the Defendant, was living separately on November 30, 1997, and came to a house again on September 30, 2003 by the Defendant’s opinion, but went back again on October 30, 2003, a month only once.

C. The plaintiff had been living separately from the plaintiff and the defendant for about 11 years from the first time after the withdrawal to the temporary home, except for the period of return to the temporary home. During the above separate period, the defendant has found the plaintiff, such as the defendant's whereabouts on several occasions, and the principal of the case has also left the plaintiff.

D. The plaintiff living together with the non-party in early 2007 until now, while giving birth to the non-party on February 12, 2008 as the body weight of 2.4 kilograms between the non-party and the non-party.

E. Meanwhile, since the plaintiff and the defendant commenced to separate as mentioned above, the defendant has been raising minor children with his mother's assistance so far.

F. The Plaintiff appears on the date of this court’s conciliation and requested that “the Nonparty’s wife born between the Nonparty shall be continuously treated, and thus, it is difficult to provide treatment because it is difficult to do so because he/she is unable to do so because he/she has no currently divorced. The marriage life with the Defendant has been broken down to the extent that it is impossible to recover. As such, even for the Defendant’s new birth and the Defendant’s treatment and rearing of the child, he/she is able to use himself/herself even for the treatment and rearing of the child born later. The Defendant requested that the child support be borne if he/she still remains in the same condition, but he/she will have no choice but to commit suicide if he/she is under the condition that he/she will be responsible for a divorce.” On this request, the Defendant is strongly desiring that “the principal of the case is waiting for the Plaintiff to return home, and the Defendant also wishes to continue a marital relationship with the Plaintiff.” The principal of the case was unable to be aware of the Plaintiff’s childbirth and the Plaintiff cannot respond to the Plaintiff’s request by failing to mediation.

2. The first instance judgment

As to the plaintiff's claim for divorce in this case on the ground that there is a serious reason that it is difficult for the plaintiff to continue the marriage between the plaintiff and the defendant, the spouse who is mainly responsible for the failure of marriage cannot, in principle, file a claim for divorce on the ground of the failure of marriage. However, even though it is objectively evident after the failure of marriage, the other party is not able to continue the marriage after the failure of marriage, the claim for divorce by the responsible spouse is exceptionally allowed only in exceptional cases where there are special circumstances, such as the other party's failure to comply with the divorce in misunderstanding or retaliation appraisal (see Supreme Court Decisions 9Meu1213, Oct. 8, 199; 2004Meu1033, Sept. 24, 2004). In light of the established facts, the plaintiff's claim for divorce in this case is acknowledged to have reached a situation where the marital life of the plaintiff and the defendant is still unable to observe the present situation, but the other party's claim for divorce in this case is not the principal and the other party's claim for divorce.

3. The judgment of this Court

A. As to the claim for divorce

According to the above facts, the marital relationship between the plaintiff and the defendant is so far as it is impossible to recover the community of living suitable for the marriage again due to the serious failure of the marriage, and forcing the plaintiff to continue the marriage with the defendant to leave the new married couple, and the possibility of suicide cannot be ruled out. Thus, the plaintiff's marital relationship between the plaintiff and the defendant constitutes "when there is a serious reason to make it difficult for the plaintiff to continue other marriage" as provided by Article 840 subparagraph 6 of the Civil Act. Such marital relationship between the plaintiff and the defendant constitutes "when there is any other serious reason to make it difficult for the plaintiff to continue the marriage." However, in light of both parties' age and living period, if there is no child between the couple for a considerable period of time and there is no child, the claim for divorce cannot be permitted on the ground that the other party or his child is in a very harsh mental, social, and economic condition due to divorce, unless special circumstances are acknowledged to significantly violate social justice.

The reason is as follows: (a) it is extremely difficult for the other party to file a claim for divorce to protect the interests of the other party, as far as possible, by preventing the other party from being dissolved; and (b) in today’s situation where women’s status is enhanced and women leading to divorce claims, the other party’s fault should be alleged and proved in the public trial process; and (c) it is difficult for the other party to perform his/her joint duty of raising children after divorce, and thus, it is more difficult for the other party to accept the claim for divorce, even if the other party’s claim for divorce is deemed to have breached his/her duty of care because it is difficult for the other party to take advantage of the other party’s legal status and thus, it would be difficult for the other party to take advantage of the other party’s legal status so that it would be difficult for the other party to take advantage of the other party’s legal status and thus, it would be difficult for the other party to take advantage of the other party’s legal status and thus, it would be difficult for the other party to claim divorce.

As to the instant case, the Plaintiff and the Defendant left 7 years of living together with the Defendant, and the period of separate living is longer than 11 years. The children born between the Plaintiff and the Defendant are currently a high school student and a middle school student with no care of the Plaintiff, and they can deal with their own work and resolve the case without any care. However, the Plaintiff’s new newborn baby who has given birth is indispensable to care. At present, although the Plaintiff is the most important thing to treat and rear the said newborn baby, the Defendant is demanding the Plaintiff to return to the past life without considering the Plaintiff’s address, and it is difficult for the Plaintiff and the Defendant to agree with the judgment. If the Plaintiff’s remaining suicide due to the Plaintiff’s lack of family relationship as his own person’s person’s own person’s own person’s own person’s own person’s own person’s own person’s ability to engage in treatment and rearing, and thus, it is difficult to accept the Plaintiff’s claim for divorce due to the Plaintiff’s mental uncertainty and social uncertainty, etc., which would seriously go against the Plaintiff’s interest in the instant case and thus, it is difficult to accept the Defendant’s new contact.

B. Ex officio determination on custody of a person with parental authority and a child

Furthermore, considering the various circumstances such as the source revealed in the proceedings of this case, the defendant's marital life and failure, the age of the principal of this case, and the custody environment, it is reasonable to allow the defendant to exercise parental authority over the principal of this case and the custody for the principal of this case. Thus, the defendant shall be designated as the person in parental authority and the custodian of the principal of this case.

In addition, as long as the defendant has been designated as the guardian of the principal of this case, the plaintiff is obligated to share the child support with the defendant as the mother of the principal of this case. In full view of the age and residence of the principal of this case, the age, occupation, property and economic ability of the plaintiff and the defendant, and other various circumstances shown in the arguments of this case, it is reasonable to determine the child support for the principal of this case as 300,000

Therefore, the Plaintiff is obligated to pay the Defendant KRW 600,00 each month from the day following the day when this judgment became final and conclusive to April 3, 2013, which is the day before the principal of the case reaches the majority, to the day before April 3, 2013, and KRW 400,000 each month from the next day to October 22, 2014, which is the day before the principal of the case reaches the majority.

In addition, the plaintiff and the principal of the case who do not directly raise the principal of the case have the right to interview and negotiate with each other, and it is judged necessary for the welfare of the principal of the case, so the method of exercising the visitation right should be determined like paragraph 5 of this Article.

4. Conclusion

Therefore, the plaintiff's claim for divorce of this case is accepted on the ground of its reasoning, and the court below revoked the judgment of the court of first instance and accepted the plaintiff's claim, and decides ex officio matters concerning the custody of persons with parental authority and children as per the disposition.

Judges Cho Jae-sung (Presiding Judge)

주1) 일본 최고재판소 1987. 9. 2. 선고 소화61년(オ)제260호 판결도 같은 내용이다.