[1] The case where a responsible spouse's right to divorce is recognized

[2] Whether a claim that falls under ordinary civil cases can be joined in a lawsuit concerning Class B family litigation cases and Class E family non-litigation cases under Article 2(1) of the Family Litigation Act (negative)

[1] As a matter of principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of such failure. However, even though it is objectively apparent that the other party has no intention to continue the marriage after the failure, it is exceptionally acknowledged the right to claim a divorce by the responsible spouse only in exceptional circumstances where there are special circumstances, such as the failure to comply with the divorce in misunderstanding

[2] The Class B family litigation cases and Class E family non-litigation cases under Article 2 (1) of the Family Litigation Act are subject to legal procedures different from ordinary civil cases, so in principle, claims falling under ordinary civil cases shall not be joined in the litigation concerning family cases as above.

[1] Article 840 of the Civil Code / [2] Article 14 of the Family Litigation Act

[1] Supreme Court Decision 9Meu1213 delivered on October 8, 1999 (Gong1999Ha, 2324) Supreme Court Decision 2003Meu1890 Delivered on February 27, 2004 (Gong2004Sang, 551) Supreme Court Decision 2004Meu103 Delivered on September 24, 2004 (Gong2004Ha, 1740)

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

Defendant (Law Firm Chungcheong, Attorneys Hong-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Reu1700 delivered on June 22, 2004

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

1. Regarding ground of appeal No. 1

In principle, a spouse who is mainly responsible for the failure of the marital life may not file a petition for divorce on the ground of such failure. However, even though it is objectively obvious that the other party has no intention to continue the marriage after the failure, the other party is exceptionally entitled to the claim for divorce by the responsible spouse only in exceptional circumstances where there are special circumstances, such as the failure to comply with the divorce in misunderstandings or retaliation sentiment (see Supreme Court Decision 9Meu1213, Oct. 8, 199, etc.).

After compiling the adopted evidence, the court below rejected the plaintiff's claim on the premise of the failure of the marriage between the plaintiff and the defendant, on the ground that there is no evidence to acknowledge the failure of the marriage due to the defendant's fault. The court below rejected the plaintiff's claim on the premise that the failure of the marriage between the plaintiff and the defendant caused the failure of the marriage due to the reason that there is no evidence to acknowledge it. The court below rejected the plaintiff's claim on the premise that the responsibility of the plaintiff and the defendant caused the failure of the marriage due to the failure of the marriage is not only the operation of the restaurant but also verbal abuse and assault to the defendant and his children while taking care of them, and the non-party and their children cannot be understood formally from the point of view of the fact that they voluntarily use the restaurant and without any effort to resolve the conflict (trade name omitted) with the burden of heavy debt, and it is clear that the plaintiff is the plaintiff who requested the divorce without any effort to resolve the conflict. Thus, the plaintiff's claim for divorce against the failure of the marriage cannot be permitted as a matter of principle, and the defendant also did not comply with the plaintiff's claim for divorce.

In light of the records, the above fact-finding and judgment of the court below are justified in accordance with the above legal principles, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to the divorce claim of the responsible spouse.

2. Regarding ground of appeal No. 2

The family litigation cases of Category B and Category E under Article 2(1) of the Family Litigation Act are subject to legal procedures different from ordinary civil cases, so in principle, claims falling under ordinary civil cases cannot be joined in the litigation concerning family cases as above.

According to the records, when the plaintiff filed a family litigation case of Category B and E, a family non-litigation case, with the Seoul Family Court, which joined a divorce claim of Category E and a family non-litigation case, but the court of first instance decided against the plaintiff, the court below maintained the claim to the same purport in its entirety. Meanwhile, on the premise that the legal principles on the termination of a trust agreement between husband and wife or the provisions on the marital property division claim of Article 829(3) of the Civil Act can be inferredly applied even in the absence of a marital property agreement prior to marriage agreement, the first preliminary claim, and on the premise that the first preliminary claim, the first preliminary claim, and the second preliminary claim, the first preliminary claim filed an application for ownership transfer registration for the cancellation of a trust agreement between husband and wife and the defendant for an additional and preliminary claim for the modification of the price by attaching the real property under the name of the defendant, which is a public property, to the original and the defendant by one-half of the two separate claims. However, a claim for ownership transfer registration due to the termination of a trust between husband and wife or a family litigation case cannot be combined with a family litigation case.

Therefore, the court below is justified in holding that the plaintiff's application for additional and preliminary claim modification is unlawful, and there is no error in the misapprehension of legal principles as to the consolidation or modification of claims as alleged in the grounds of appeal.

In addition, as long as the court below rejected the plaintiff's application for modification of the additional and preliminary claim and it is justified as seen above, it does not need to make a decision on the merits of the new claim upon the application for modification of the additional and preliminary claim together. Therefore, the judgment of the court below does not contain any error of law as alleged in the ground of appeal.

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

Justices Lee Kang-tae (Presiding Justice)