2015Meu500 Divorce, etc.

A:

A person shall be appointed.

Daejeon High Court Decision 2014213 decided January 14, 2015

March 10, 2016

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the ground for divorce under Article 840 subparagraph 2 of the Civil Act

According to the reasoning of the lower judgment, the lower court determined that it is difficult to recognize that the Defendant, without justifiable grounds, renounced the duty of living together, support, and cooperation and abandoned the Plaintiff.

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and it exceeds the bounds of the principle of free evaluation of evidence against logical and empirical rules.

No error may be found.

2. As to the ground for divorce under Article 840 subparagraph 6 of the Civil Act

A. Even where it is deemed that there is a ground for divorce under Article 840 subparag. 6 of the Civil Act, a spouse who is mainly responsible for the failure of the marital life may not claim a divorce on the ground of such failure (see Supreme Court Decision 92Meu90 delivered on March 9, 1993, etc.).

However, in a case where the other party’s spouse has no intention to continue the marriage and there is no concern about divorce or divorce by one’s will. Furthermore, in a case where protection and consideration is given to the other party’s spouse and children to offset the responsibilities of the other party’s spouse as well as where the other party’s spouse’s spouse’s emotional distress at the time of marriage dissolution and the other party’s emotional distress are gradually deteriorated as the other party’s spouse’s emotional distress at the time of marriage is more serious, the other party’s claim for divorce may be allowed in exceptional cases where there are special circumstances where the responsibilities for the failure of the other party’s life remains to the extent that the claim for divorce should be rejected, such as in a case where the other party’s spouse’s liability for divorce is no longer serious. In such a case, determination of whether to allow a claim for divorce by a responsible spouse should take account of the type and degree of liability of the responsible spouse, the other party’s intention to continue the marriage and the responsible spouse’s age, specific living relationship after marriage, separate period, marital relationship between the married, and other circumstances.

B. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court, ① the Plaintiff and the Defendant were legally married with C on October 10, 1987, and have two adult children. ② The Plaintiff maintained the Buddhist relationship with C from around 2001 to around May 2002, and only one child was raised between C and the Defendant on May 2002. ③ The Defendant was aware of such fact and kept a matrimonial relationship with C around May 2003, and the Defendant continued to contact with C, and the Defendant came to know of the fact that he continued to have gifts between C and C on March 17, 2012, and that he visited the Defendant that he did not come to 20 if he did not visit the Plaintiff’s gift to the Defendant, and the Defendant did not come to know that he did not come to 20, 200, 200.

9. The right to collateral security was established for the Seo-gu E Apartment owned by the Plaintiff, which the Defendant and his children reside with D, and the auction procedure for the said apartment was in progress upon D’s request. 8 The Plaintiff is currently living with C; 9 The Defendant expressed his intention to continue marriage with the Plaintiff.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff is the responsible spouse for failure of the marital life, and even considering the various circumstances of the marriage relationship, it is objectively clear that the Defendant does not have any intent to continue the marriage, but does not comply with the divorce in misunderstandings or retaliation sentiment, or does not constitute special circumstances where the Plaintiff’s liability does not remain to the extent of rejecting the claim for divorce. Therefore, the Plaintiff cannot file a claim for divorce on the ground of failure.

In the same purport, the lower court’s measure of maintaining the first instance judgment dismissing the Plaintiff’s claim for divorce is justifiable, and it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on judicial divorce

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 on the bench.

Justices Lee In-bok

Justices Kim Gin-young

Chief Justice Lee Ki-taik