The criteria for determining whether there has been an agreement of the intention of divorce corresponding to the common use

In a case where the parties have no longer intent to continue a matrimonial relationship and there is an obvious agreement with the intention of divorce, even if the marital relationship remains legally, it shall be deemed that the expression of intent as to the end of the other party’s prior consent is included in the agreement. Whether there was an obvious agreement of the intention of divorce has been made or not shall be deemed that the parties to the marriage have no intention to maintain a matrimonial relationship in light of not only the written agreement has been made, but also the various circumstances such as the parties’ speech and behavior, etc., and it may be deemed that there was such agreement even in a case where it is deemed that the other party’s desire to respond to a request for divorce by a certain party appears

Article 241 of the Criminal Act, Article 327 of the Criminal Procedure Act

Supreme Court Decision 77Do2701 Decided October 11, 197 (Gong1977, 10366) Supreme Court Decision 83Do2504 Decided November 22, 1983 (Gong1984, 134) Supreme Court Decision 90Do1188 Decided March 22, 191 (Gong191, 1309)

Defendant 1 and one other

Prosecutor

Seoul District Court Decision 94No6436 delivered on October 12, 1995

The appeal is dismissed.

The grounds of appeal are examined.

Even if an intention of divorce is expressed by both parties on a provisional, temporary, and conditional basis, the intention of divorce does not constitute a simple common use (see Supreme Court Decision 90Do1188, Mar. 22, 1991). However, in cases where the parties actually have no intention to continue the marriage and there is an obvious agreement with the intention of divorce, even if the marital relationship remains in force, the declaration of intention on the species, which can be regarded as prior consent of the other party, shall be deemed as being included in the agreement. Whether there was an obvious agreement of intention of divorce shall be determined not only in cases where a written agreement has been made, but also in cases where it is deemed that both parties had no intention to maintain the marital relationship in light of various circumstances, such as the parties’ speech and behavior, etc., and it can be recognized that there was such agreement with the other party even in cases where it appears that the other party would not respond to the demand of divorce.

However, according to the records, even if Defendant 1’s husband’s testimony was based on his own testimony, the complainant was bound on August 14, 1993 to proceed with the divorce procedure within one month, and the complainant was required to obtain the key of the apartment living together with the complainant and to transfer the name of the apartment registered in the name of the defendant, and the defendant demanded to obtain the owner’s seal impression and resident registration certificate, which is necessary for the transfer of the name of the apartment registered in the name of the defendant, the complainant was also defective, and the defendant also tried to obtain the owner’s seal impression and resident registration certificate within a small amount of time as requested by the complainant, and the complainant tried to proceed with the divorce procedure within one month, and even if the complainant’s arbitrariness and the defendant were to be divorced to the defendant, the complainant did not appear to have violated the rules of evidence before and after 1 month, and there were no other errors in the misapprehension of legal principles as to the defendant’s testimony before and after 194.

As long as the agreement with the intention of divorce is recognized at the time of the Hague on August 14, 1993, the remaining grounds for appeal on the judgment of the court below as to the subsequent circumstances need not be examined. The grounds for appeal are without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)