[1] The case holding that in a case where a male of the United States nationality who has a legal domicile in the State of the United States of America has jurisdiction over a woman of the Republic of Korea nationality and a woman of the Republic of Korea residing in the Republic of Korea without setting the period of stay, who has acquired the nationality of the United States and the defendant living in the Republic of Korea and filed a claim for divorce, designation of person with parental authority

[2] The case holding that Article 9 (1) of the Act on Private International Law, which applies mutatis mutandis to the case of a claim for divorce, etc. between the husband and wife holding the nationality of the United States of America and residing in the Republic of Korea, shall apply the Civil Code of the Republic of Korea, a legal suspension corporation, in accordance with the legal principles of "dive anti-dumping" in

[3] The case holding that Article 8 (1) of the Private International Act does not apply on the ground that since both the plaintiff and the defendant have the habitual residence in the Republic of Korea as well as the plaintiff and the defendant have formed the domicile of choice in the Republic of Korea under the law of the State of the State of the State of the State of the State of the State of the United States, which is the previous domicile, the Civil Code of the Republic of Korea can be viewed as the governing law which has sufficient relations with the claim, such as divorce between the plaintiff and the defendant, designation of the person in parental authority and the

[4] The purport of Article 10 of the Private International Act on the Violation of public order and good morals

[1] The case holding that, in case where a male of the United States nationality, who has a legal domicile in the State of the United States of America, has formed a domicile in the Republic of Korea with a female of the Republic of Korea nationality of the Republic of Korea, and the defendant living in the Republic of Korea without setting the period of stay, and has filed a claim for divorce, designation of a person with parental authority, and designation of a custodian, etc. against the defendant, the court of the Republic of Korea has jurisdiction in accordance with Article 2 (1) of the Private International Act, on the ground that the above claim can be deemed as having substantial relations with the Republic of Korea, considering the fact that the plaintiff and the defendant have a habitual residence in the Republic of Korea, the marriage has been constituted in the Republic of Korea, and most of the marital life has been formed in the Republic of Korea, and the plaintiff and the defendant formed a domicile at their choice, and considering the fact that the defendant lawfully served a written complaint and actively responded with the defendant, there is no problem in exercising the jurisdiction of the court of the Republic of Korea, even if considering the specificity of international jurisdiction.

[2] The case holding that the Civil Code of the Republic of Korea shall be applied to the case where the law of the forum to which the present domicile of the plaintiff and the defendant belongs should be the governing law in case where both the plaintiff and the defendant form the domicile of choice in the Republic of Korea and both of the parties residing in the Republic of Korea, and have filed a lawsuit against the plaintiff in the Republic of Korea against the wife, since the law of the forum to which the present domicile of the plaintiff and the defendant belongs should be the governing law, on the grounds that Article 9 (1) of the Private International Act of the Republic of Korea on the "in the event of designation of the law of the law of the law of the law of the law of the law of the law of the law of the Republic of

[3] The case holding that Article 8 (1) of the Private International Act does not apply on the ground that since both the plaintiff and the defendant have the habitual residence in the Republic of Korea as well as the plaintiff and the defendant have formed the domicile of choice in the Republic of Korea under the law of the State of the State of the State of the State of the State of the State of the United States, which is the previous domicile, the Civil Code of the Republic of Korea can be viewed as the governing law which has sufficient relations with the claim, such as divorce between the plaintiff and the defendant, designation of the person in parental authority and the custodian,

[4] Article 10 of the Private International Act provides that "in a case where a foreign law shall govern, if the application of the provision clearly violates the good customs and other social order of the Republic of Korea, it shall not apply." This does not purport that a court of the Republic of Korea should examine if a court of the Republic of Korea shall apply the foreign law as the applicable law to a case that has foreign elements, and if it would result in a clear violation of the good customs and other social order of the Republic of Korea, it does not purport that a court of the Republic of Korea should examine whether the application of the domestic law would result in a clear violation of the good customs and other social order of the

[1] Articles 1 and 2 of the Private International Act / [2] Articles 3(3), 9(1), 37, and 39 of the Private International Act / [3] Article 8(1) of the Private International Act / [4] Article 10 of the Private International Act

Plaintiff (Law Firm Duo, Attorneys Kim Jung-chul et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-ho, Counsel for defendant-appellee)

The principal of the case and one other

Daegu District Court Decision 2004Reu441 Delivered on May 18, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Examining the evidence adopted by the court below in light of the records, the following facts can be recognized.

A. The plaintiff is a male who has the nationality of the United States of America (hereinafter referred to as the "U.S.") and has a legal domicile in the State of the United States of America, and completed the report of marriage on November 6, 191 between the defendant who is a female with the nationality of the Republic of Korea and the defendant, and thereafter the principal of the case was born by the plaintiff and the defendant.

B. The defendant acquired the right of citizens of the United States following the marriage with the plaintiff. The plaintiff and the defendant resided in the U.S. branch from July 1992 to July 1994. Since they returned to the Republic of Korea around July 1994, they continue to reside with the principal of the case without setting the period of residence until now.

C. At the time of the above marriage, the Plaintiff filed a petition for divorce with the first instance court on the ground that the marital relationship between the Plaintiff and the Defendant has disappeared due to the Defendant’s fault while he was a U.S. Army officer during the marriage period and was working as an appointed information technician for a corporation (name omitted) in Daegu, and at the same time filed a lawsuit to the effect that the person with parental authority and the custodian for the principal of the case have been designated as the Plaintiff. The Defendant duly served the copy of the complaint of this case and actively responded to it.

D. On the first instance court, the Plaintiff asserted that the previous domicile in the United States has already been extinguished and that as he would continue to reside in the Republic of Korea in the future, the court of the Republic of Korea having jurisdiction over the actual domicile of the Plaintiff has the jurisdiction over this case, and that the Civil Code of the Republic of Korea (hereinafter referred to as the “Civil Code”) as a legal suspension corporation should be the governing law.

2. Regarding ground of appeal No. 1

A. Foreign elements in the instant case

In this case, the plaintiff with the U.S. nationality filed a claim for divorce, designation of a person with parental authority and a child care with the Korean court against the defendant with the U.S. nationality.

B. As to the assertion on international jurisdiction, governing law, etc.

(1) The plaintiff and the defendant are able to have a habitual residence in the Republic of Korea without setting the time limit for residence. Considering that the marriage was established in the Republic of Korea and most of their marital life was formed in the Republic of Korea, the court of the Republic of Korea can be deemed to have jurisdiction over this case under the provisions of Article 2 (1) of the Private International Act. On the other hand, the court of the Republic of Korea has jurisdiction over this case in accordance with the law of the State of the State concerning divorce, etc. 452. Crdter 452. Drorce, Divorce, Imthy and 371, etc.) of the relevant provisions of the Private International Act, and the court of the Republic of Korea has no jurisdiction over this case's case's case's case's case's case's case's case's right to divorce, etc., and the plaintiff's case's case's case's former case's case's case's case's case's case's case's general law and second case's case's case's new case's case's case's case's case's case'.

(2) Furthermore, according to Article 39 and Article 37 subparag. 1 of the Private International Act, the same law of nationality of the couple and the same law of nationality is first applied to divorce applicable to divorce cases. Since the United States is a country with different laws in accordance with Article 3(3) of the Private International Act, in determining the applicable law to divorce cases between the plaintiff and the defendant holding the U.S. nationality, the law of the State of the State with the previous domicile should be examined. In accordance with the law of the State of the State of the United States and the general principles on the private international law of the United States, etc. as seen in the above paragraph (1), all the plaintiff and the defendant who have the U.S. nationality have formed the domicile at choice in the Republic of Korea, and the law of the forum to which the present domicile of the plaintiff and the defendant belongs should be applied to this case, and ultimately, Article 9(1) of the Private International Act governing divorce cases should be applied by analogy to the legal principle of the State of the State of the State of the United States and the defendant.

(3) If so, there are some inappropriate parts in the court below's reasoning, but the court below's decision that the Korean court should have jurisdiction over the lawsuit in this case and apply the Civil Code as the applicable law is just, and it cannot be said that there is no error of law affecting the judgment, such as misunderstanding of legal principles or incomplete hearing, as otherwise alleged in the

C. As to the assertion on Article 8(1) of the Private International Act

The ground of appeal asserts that the nationality of both the plaintiff and the defendant is the United States and even if the court of the Republic of Korea declares a divorce, the divorce procedure, etc. is conducted in accordance with the law of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of

On the other hand, Article 8(1) of the Private International Act provides that "if the applicable law designated by this Act is limited to the corresponding legal relations, and there is clear existence of the law of the other country which is most closely related to such legal relations, the law of that other country shall govern." As seen in the above (b) above, since both the plaintiff and the defendant have the habitual residence in the Republic of Korea and have formed the domicile of choice in the Republic of Korea under the law of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the State of the Republic of Korea, the Civil Code of the Republic of Korea, which

D. As to the assertion of violation of public order and good morals

The ground of appeal asserts to the effect that the court below erred in applying the Civil Act, which is a domestic law, to this case, because the Civil Act adopts the "defition principle" differently from the laws of the State of Liri, the United States, etc. adopting the "defition principle" in the divorce lawsuit between the plaintiff and the defendant holding the nationality of the United States, in application of the Civil Act in the divorce lawsuit between the plaintiff and the defendant.

On the other hand, Article 10 of the Private International Act provides that "in cases where a foreign law shall govern, if the application of the provision clearly violates the good customs and other social order of the Republic of Korea, it shall not apply." This only means that a court of the Republic of Korea should examine if a court of the Republic of Korea applies a foreign law as the applicable law to a litigation case containing a foreign element, which results in a clear violation of the good customs and other social order of the Republic of Korea, and it does not purport that a court of the Republic of Korea should examine if the application of the domestic law causes a clear violation of the good customs and other social order of the Republic of Korea.

In this case, although both the plaintiff and the defendant have U.S. nationality, as seen above, the Civil Code, which is a domestic law, applies to the lawsuit in this case. In such a case, there is no ground to examine whether the result of legal application is in violation of the public order and good morals under the U.S. law in the Korean court. Thus, the independent argument in the grounds of appeal, which is premised on a different opinion, is without merit (as examined in paragraph (3) below, it is difficult to find that the plaintiff and the defendant's marital life in this case has reached a state of insolvency in which recovery is impossible, and even if it is assumed that the law of U.S. State based on the "patan" as alleged in the grounds of appeal is applied to this case, even if it is assumed that the law of U.S. State is applied to this case, the Korean court may not accept the plaintiff's claim for divorce in this case. Thus, the argument in the grounds of appeal, which affected the plaintiff's fundamental rights by applying the Civil Code, which is not the law of the State of

3. Regarding ground of appeal No. 2

In light of the records, the fact-finding by the court below that it is difficult to recognize that the marital relationship between the plaintiff and the defendant has reached the failure of recovery due to the defendant's cause attributable to the defendant is just, and therefore, the court below did not err by failing to exhaust all necessary deliberations and misunderstanding facts against the rules of evidence as otherwise alleged in the ground of appeal.

4. Conclusion

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

Justices Park Si-hwan (Presiding Justice)