[1] The meaning of "where 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, and the criteria for judgment thereof

[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 reversing the judgment of the court below that it is difficult to acknowledge that the marital relationship between Gap and Eul has been broken down to the extent that it can no longer be recovered, in case where Gap and Eul had no sexual intercourse at least once for not less than seven years since the marriage between Eul and Eul and they had a separate living for these reasons

[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, refers to the case where the marital relationship corresponding to the essence of the marriage that should be based on difficulties and trust between the husband and the wife has been broken down to the extent that it is impossible to recover and compelling the continuation of the marital life becomes a cause for which one spouse cannot join. In determining this, the existence of intention to continue the marriage, the existence of the party's liability for the cause of the failure, the period of marital life, the existence of children, the party's age, the guarantee of livelihood after the divorce, and other circumstances of the marital relationship shall be taken into consideration equally. In addition, if it is deemed that the marital relationship between the husband and the wife has ceased to exist to the extent that it is impossible to continue the marriage, a divorce claim shall be accepted unless the plaintiff's responsibility for the cause of

[2] If there is a disability in the sexual function of a married couple or there is no sexual contact between the married couple, and there is a possibility that they will return to normal sexual life when they receive specialized treatment and assistance, such circumstance is temporary or short-term. Thus, the sexual defect of that degree alone cannot be a "serious reason why it is difficult to continue marriage". However, if there is a fact that the sexual intercourse is refused without justifiable reason or normal sexual life is impossible due to incomplete sexual function or undermining the normal sexual desire of the married couple due to other circumstances, the marital relationship between the married couple may be a "serious reason that it is difficult to continue marriage" in view of that it is an essential element of marriage.

[3] The case reversing the judgment of the court below that it is difficult to recognize that the marital relationship with Gap and Eul has ceased to exist to the extent that it can no longer be recovered, on the grounds that, in case where Gap and Eul were married with Eul and they got a separate living due to the lack of sexual intercourse and the reason for this, etc. for not less than seven years after they were married with Eul, after further review of the existence of any sexual defect with Gap and Eul through the examination of evidence, such as a mental and medical expert, and whether there are any other causes that prevent them from having a normal sexual life with Eul even if they were not such defect, and whether such defect or other causes that impede their normal sexual life may be easily overcome by the parties' efforts, etc.

[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) / [2] Supreme Court Decision 2002Meu74 delivered on March 29, 2002 (Gong2002Sang, 1012) Supreme Court Decision 2009Meu2413 Delivered on December 24, 2009 (Gong2010Sang, 252)

Plaintiff (Attorney Kim Jong-sung et al., Counsel for plaintiff-appellant)

Defendant (Attorney Park Poe-young et al., Counsel for the defendant-appellant)

Seoul Family Court Decision 2009Reu1499 Decided January 29, 2010

The judgment below is reversed, and the case is remanded to the Seoul Family Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court of first instance cited by the court below, the court of first instance comprehensively takes account of the adopted evidence, and acknowledged the facts that the plaintiff and the defendant did not have a sexual relationship once more than once during the marriage period after the marriage on May 21, 199, and did not have a sexual relationship. The plaintiff asserted that "the defendant refused a sexual relationship without justifiable grounds." The defendant asserted that "the plaintiff intentionally avoided a sexual relationship after the plaintiff attempted a sexual relationship at the beginning of the new marriage," and that "the non-existence of a sexual relationship was caused by the defendant's cause attributable to the defendant, such as refusing a sexual relationship without justifiable grounds, and the defendant expressed his/her intention to make every effort, such as counseling and treatment with experts, etc., it is difficult to recognize that the marriage relationship between the plaintiff and the defendant was no longer completed to the extent that it can no longer recover.

2. However, we cannot agree with the judgment of the court below for the following reasons.

"When there is a serious reason for making it difficult to continue the marriage" as stipulated in subparagraph 6 of Article 840 of the Civil Act refers to cases where communal living relationship corresponding to the essence of marriage that should be based on difficulty and trust between the couple and it causes pain to one spouse as unable to recover. In determining this, the existence of intention to continue marriage, whether or not the parties have been responsible for the cause of failure of marriage, the period of marital life, the parties' age, the guarantee of livelihood after divorce, and other circumstances of marriage, should be taken into account equally. If it is deemed that the marital relationship between the couple has ceased to exist to exist to the extent that the plaintiff's responsibility is greater than the defendant's liability, and it is impossible or difficult to determine that there is a serious reason to continue the marriage between the couple due to the lack of sexual function and the other serious reason beyond the judgment of the Supreme Court. (see, e.g., Supreme Court Decision 90Meu1067, Jul. 9, 191).

기록에 비추어 살펴보면, 원고와 피고는 1999. 5. 21. 혼인신고를 하고 그 무렵 신혼여행을 다녀온 다음 1999년 7월경 원고의 학업을 위하여 함께 미국으로 출국하여 유학생활을 한 이래 한 차례도 성관계를 하지 못한 사실, 원·피고는 7년 이상의 장기간에 걸친 성관계 부존재 등의 사유로 불화를 겪다가 2007년 1월경부터는 별거생활을 시작하였고, 원고가 2007년 2월경 부모에게 그동안 성관계를 못하였다는 사실을 알린 이후에는 피고가 시댁 식구들로부터 외면당하였으며 2007. 8. 10. 이 사건 소가 제기된 사실, 한편 원고는 2009. 11. 17.경 비뇨기과 전문의로부터 성기능 검사를 받았는데, 혈류검사에서 약간의 혈류저하가 있으며, ‘상세불명의 경미한 성기능장애’ 진단을 받은 사실을 알 수 있다.

In light of the above, even though the plaintiff's sexual function disorder is minor and it seems that the plaintiff's professional treatment and assistance could have been received, if both the plaintiff and the defendant did not have a sexual relationship at least once for at least seven years since marriage and went through a separate life due to such reasons, even though there is no evidence to recognize that the defendant refused sexuality without justifiable grounds, if there are other circumstances that prevent the defendant from living a normal sexual life due to incomplete sexual function or undermine the normal sexual desire between the plaintiff and the defendant, it is reasonable to deem that the marital relationship between the plaintiff and the defendant has been broken down to the extent that it is impossible to recover. Furthermore, if the defendant is unable to live a normal sexual life due to incomplete sexual function, or even if there is no evidence to acknowledge such circumstance, it may be more likely that the plaintiff and the defendant are liable for the defendant's normal sexual desire, or that there is any other circumstance that prevents the defendant from living a normal sexual desire between the plaintiff and the defendant.

If so, the court below should have further deliberated on the existence of any sexual defect in the plaintiff and the defendant through the examination of evidence, such as the appraisal of a psychiatrist, and whether there exists any other cause that prevents the plaintiff and the defendant from having a normal sexual life even if such defect is not a defect, and whether such defect or other cause that impedes a normal sexual life, etc. may be easily overcome by the parties' efforts. After further examination, whether the relationship between the plaintiff and the defendant has reached a failure to the extent that it is impossible to recover, or if the failure has reached a failure, to the extent that the cause is attributable to anyone.

Nevertheless, the court below's dismissal of the plaintiff's claim on the ground that there is no evidence to acknowledge that the defendant refused the marital relationship without any justifiable reason, which affected the conclusion of the judgment by misapprehending the legal principles as to the grounds for judicial divorce, or failing to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)