2013dwards 5473, Nullity of marriage

2013dred8045 (Counterclaims), divorce, etc.

A

B

Attorney Park Jong-chul, Counsel for the plaintiff-appellant

October 22, 2013

November 12, 2013

1. Marriage reported to the head of Ulsan-gun on July 18, 201 by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) on July 18, 201

confirm that the invalidation is void.

2. All of the counterclaim claims filed by the Defendant (Counterclaim Plaintiff) are dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and the counterclaim.

1. Main elements;

The text of paragraph (1) is as follows.

2. Counterclaim;

The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) are divorced. The Plaintiff shall pay the Defendant consolation money at the rate of 20% per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment. The Plaintiff shall pay the Defendant with consolation money at the rate of 10 million won per annum.

1. The parties' assertion

A. The plaintiff

Since the defendant unilaterally filed a marriage report entered in the text without agreement of marriage (hereinafter referred to as “instant marriage report”), the marriage based on which it is null and void.

B. Defendant

Since there exists an agreement between the Plaintiff and the Defendant to marry, the instant report of marriage is valid, and the Plaintiff’s marital relationship was broken down as the cause of the Plaintiff’s liability.

2. Facts of recognition;

A. The Plaintiff and the Defendant began with the school system from September 2008, and lived from March 1, 2010. The Defendant became aware of the Plaintiff’s attitude around July 12, 201 while living together. On July 18, 2011, the Defendant sent the Plaintiff’s identification card and reported the instant marriage alone.

B. The defendant did not notify the defendant's parents of the reported fact after reporting the marriage.

C. The Plaintiff and the Defendant aggravated their relationship from August 201, 201, and the Defendant received a abortion surgery on August 25, 201. Around February 22, 2012, the Defendant requested the Plaintiff to divorce.

[Ground of recognition] Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 through 6 (including branch numbers), the purport of the whole pleadings

3. Determination on the principal lawsuit and counterclaim claim

A. An agreement of marriage refers to an agreement that establishes a legally effective marriage under the legal system of our country adopting a legal divorce. Thus, even if one of the parties in a de facto marital relationship reports a marriage to the other party, the marriage shall be null and void as long as it is deemed that the other party lacks the intention of marriage. However, in a case where the other party’s intention of marriage is unclear, the existence of the intention of marriage can be presumed based on the other party’s act forming a de facto marital relationship in accordance with the custom of marriage and the principle of good faith. Thus, unless it is acknowledged that the other party clearly withdraws the intention of marriage or that the parties agree to resolve a de facto marital relationship, the marriage shall not be deemed null and void (see, e.g., Supreme Court Decision 9Meu1329, Apr. 11, 200). Meanwhile, a de facto marital relationship refers to a case where the parties have the intention of marriage and there is an substance of a marital life that can recognize a marital life in terms of objective social norms, and thus, it refers to a combination between the parties to a woman and couple’s opinion not recognized as an objective.

B. In light of the above legal principles, the facts acknowledged earlier, and the following circumstances, the evidence submitted by the Defendant, including the evidence Nos. 3 through 7, is insufficient to acknowledge that the Plaintiff had the intent to marry with the Defendant at the time of reporting the instant marriage, and there is no other evidence to support this otherwise. It cannot be deemed that the Plaintiff’s intention to marry at the time of reporting the marriage.

1) The Plaintiff and the Defendant did not enter into a marital relationship, and the Defendant did not notify both parents of the fact after the instant report of marriage. The Plaintiff and the Defendant did not know of the fact that they reported both parents of the instant marriage. As long as long as they were reported of the instant marriage, they did not seem to have made an endeavor to recover the relationship between the Plaintiff and the Defendant. In light of all the circumstances, such as the legal principles as seen earlier and the recognition facts, the age of the Plaintiff and the Defendant, and the period of living, etc., it is difficult to deem that the Plaintiff’s intention to

2) The Defendant alleged to the effect that the instant marriage report was filed by the married person, and that C, as a witness, was unaware of the fact of the marriage report between the Plaintiff and the Defendant (Evidence A7). Moreover, the purport of the entry of the evidence No. 3 in the marriage report is that D, which is recorded as another witness, was heard from the Defendant’s marriage plan and the background of the Defendant’s marriage report. As such, it is insufficient to prove that the Plaintiff had the intention of marriage at the time of reporting the marriage.

3) Since the Defendant had been living together with the Plaintiff at the time of the instant marriage report, it seems that the Plaintiff could have accessed the Plaintiff’s identification card without obtaining the Plaintiff’s permission.

4) On February 22, 2012, the Plaintiff was aware of the Defendant’s demand for divorce and did not take any particular action. However, it is difficult to deem that the Plaintiff had the intention of marriage solely on such circumstance.

5) There is no objective evidence to deem that the Plaintiff had the intention of marriage at the time of the instant report of marriage.

C. Therefore, the above marriage between the plaintiff and the defendant constitutes a case where there is no agreement between the parties to marry, which constitutes grounds for nullity of marriage under Article 815 subparag. 1 of the Civil Act. Therefore, the plaintiff's claim of the principal lawsuit is justified, and the defendant's counterclaim divorce and consolation money claim under the premise that the marriage is valid is no longer reasonable.

4. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hah For the purposes of taxation