2014Reu2* * Divorce

A (40*********************))

B (50******** 2***********))

Seoul Family Court Decision 2013Ddan70 decided October 29, 2014 * Decision *

August 21, 2015

October 23, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff and the defendant are divorced.

3. All costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Facts of recognition;

A. After the first report of marriage, the plaintiff et al. had a significant dispute over the plaintiff's appearance of TV around the fourth grade of the elementary school in South and North Korea and the defendant filed a divorce report on June 24, 1980 on December 18, 1970 with the plaintiff's doctor, the defendant, as his father's father's father's mother's mother's father, after completing the marriage report on December 18, 1970, and had the headnam C (1970), the son (1972), the son (1974) and the son E (1974). The plaintiff and the defendant reported a divorce on June 24, 1980, when the agreement was reached, on June 24, 1980. 3) At the time of the first report of marriage, the plaintiff and the defendant raised the plaintiff's children, and resided together with the defendant's children, ***** * * 10,00's mother.

4) Around April 1982, the Plaintiff disposed of ○ apartment as stated in the paragraph (3) of the above 3) and purchased ○ apartment and moved into the above apartment with his children after purchasing * the Gu**** 5 - 22 dong** * * (hereinafter referred to as the “Segum apartment”). Around that time, the Defendant went into the Republic of Korea and went into the United States.

5) As to the above grounds for divorce, the Plaintiff alleged that the Defendant’s act was committed with the man who was the head of Lee Sung-tae, who was working in the security office of △△△, and caused the Defendant to bring a claim for consolation money of KRW 100 million from the wife of that man. The Defendant asserts that the Plaintiff’s negligence in home, caused excessive drinking and outpatienting, and caused the Plaintiff’s wrong divorce, such as not making excessive living expenses, etc., and that the Plaintiff’s wrong consultation has different views until now on the grounds of divorce.

B. The defendant, before and after the second marriage report, was married to 1) in the U.S., and the defendant returned to Korea on November 1, 1982, and found the above insurance complex. The plaintiff started to reside with his children with the plaintiff's consent and made a move-in report on the above apartment around March 23, 1983.

2) On March 19, 1983, the second marriage report was completed between the Plaintiff and the Defendant. While the Defendant and his children resided in the △ apartment of this case, the Plaintiff was living in one place to see their children, and the Plaintiff was living in approximately two years with the Defendant on the ground of incombustibility with the Defendant, and the Plaintiff was living in approximately two years with the Defendant after the marriage. Since October 1984 after the second marriage report, the Plaintiff was living in G and Ha for about two years from around October 1984. The Plaintiff was working in the Defendant’s friendship around April 1987, which was operated by the Defendant, * the former * the health care hospital located in the Gu * the health care hospital * the Plaintiff and the head of the above hospital 9, which became aware of the Plaintiff’s living in the above 19th hospital 9th day after the second marriage report 1984.

D. On 193, the plaintiff filed a lawsuit seeking confirmation of nullity of marriage against the defendant around 1993, Seoul Family Court 93D74 74* ***. However, there is no evidence to prove that the defendant unilaterally uses the plaintiff's seal on 19 March 19, 1983 and completed the marriage report with the plaintiff, and even if the plaintiff's allegation was recognized, the judgment against the plaintiff was rendered on 16 December 1994 on 1994 on the ground that the plaintiff confirmed the nullity of the above marriage. 2) The plaintiff added the plaintiff's claim for preliminary divorce by adding it to Seoul Family Court 95Re*, but the plaintiff's appeal and its conjunctive claim were all dismissed on 14 June 1995, the Supreme Court 95Meu*** in the Supreme Court ** in the case of the plaintiff's appeal and the decision against the plaintiff were dismissed on 21 November 195, 195.

1) As described in the above paragraph (c) above, the Plaintiff continued to live together with H from November 1, 1990 to the present date, and the Defendant resided in the Doll apartment of this case in the name of the Plaintiff for about 25 years. 2) The Plaintiff and the Defendant were living in the Republic of Korea without any exchange of Ha, except for the attendance at the marriage ceremony of Hanam, around 1997, around 197. 3), from around 1990 to around 194, 300,000 won for school expenses and 90,000 won for 3 billion won for 19 billion won for 190 to June 194, 195, and from around 300,000 won for 19 billion won for 3 billion won for 3 billion won for all school expenses and 9 billion won for 3 billion won for 19 billion won for 19,000,000 won for 3 billion won for 1.

4) During the period of separate residence with the Plaintiff, the Defendant assumed the child support and education expenses for children while operating kindergartens, child-care centers, post-care centers, etc., and was economically burled and given each donation of land, commercial buildings, apartment houses, etc. to their children.

5) The Plaintiff and H had been present at the next occasion at the end of the end of 2006, but the Plaintiff did not attend the marriage ceremony between South and North Korea. The children of the Plaintiff and the Defendant sought a paper-type Plaintiff even during the separate living period of the Plaintiff and the Defendant, and exchanged with the Plaintiff, i.e., the Plaintiff, H and Lee Dong-dong I met with, or going to travel together with, the Plaintiff, H and Lee Dong-dong. (However, South and North Korea are not exchanged with the Plaintiff since 2010).

6) The children of the original and the Defendant suffered confusion and pain due to the long-term disputes of the original and the Defendant, such as submission of a certificate or written statement to the court of first instance that approves the Plaintiff’s position or the Defendant’s position, and submission of materials to reverse it.

[Ground of recognition] 1 to 14, 24, 1 to 4, 12 through 20, each of the statements or images, witness C, D, E's testimony, and the purport of the whole pleadings

2. Determination on the claim for divorce

A. The following circumstances revealed by the fact that the marriage failure is recognized, namely, ① the plaintiff and the defendant, are 190.

11. Since around 11. Around 25 years thereafter, the Plaintiff is de facto cutting off all exchanges; ② The Plaintiff, while maintaining a de facto marital relationship with another woman for 25 years, gave birth to a married woman; and ② there is no intention to maintain a marital relationship with the Defendant, such as filing the instant divorce lawsuit following the divorce lawsuit; ③ the Defendant also did not contact the Plaintiff during a separate period of about 25 years, and it is difficult to find out all the circumstances that the Plaintiff did not have any specific contact during a separate period, and the Defendant attempted to talk, correspondence, visit, or make a serious effort to recover the marital relationship with the Plaintiff; ④ The Plaintiff’s children also recognized that the marital relationship between the Plaintiff and the Defendant was broken down. In full view of the above, it is recognized that the marital life as the Plaintiff and the Defendant’s husband and the Defendant’s husband and the Defendant’s husband and the Defendant’s wife were completely punished, thereby having already been broken down.

B. The cause of the failure

Furthermore, as seen in the above facts, it is reasonable to view that the plaintiff and the defendant committed unlawful acts against other women and the defendant even after they completed the second marriage report on March 19, 1983, and that the plaintiff, while maintaining a de facto marital relationship with H from November 1990 to the person who gave birth to the person who is not the person in question. As such, in principle, the responsible spouse who is mainly responsible for the failure of a marriage is governed by Article 840 subparagraph 6 of the Civil Act and cannot file a claim for a divorce on the ground of such failure (see Supreme Court Decisions 90Meu95, Apr. 27, 1990; 92Meu90, Mar. 9, 1993, etc.).

C. However, the Supreme Court’s precedent that does not allow a divorce claim by a responsible spouse is contrary to the morality required by the marriage system and prevents the outcome contrary to the good faith principle. As such, as long as the marriage system is pursued and in light of the good faith principle, if the responsibility does not remain to the extent that the claim for divorce should be rejected, the claim for divorce by such spouse is not likely to undermine the marriage and family system, and is not contrary to the morality and ethics of the society, and thus, it should be allowed.

Therefore, in a case where there is no concern about divorce or divorce by one’s will because the other spouse has no intention to continue the marriage, as well as where protection and consideration has been given to the other spouse and children to offset the responsibilities of the other spouse claiming divorce, the other spouse may exceptionally allow the claim for divorce by the liable spouse in special circumstances where the liability for the failure of the other spouse’s life is not left to the extent of excluding the claim for divorce, such as in a case where the liability of the responsible spouse for the failure of marriage as well as the mental suffering of the other spouse at the time of the time of the dissolution of marriage has gradually deteriorated as a result of the other spouse’s dissolution of marriage and the other spouse’s mental suffering, and where the other spouse’s liability for the failure of marriage is no longer serious, the other spouse may be allowed to claim divorce by the liable spouse. Such determination should take into account the form and degree of liability of the responsible spouse, the other spouse’s intention to continue the marriage and the responsible spouse’s age, specific living relationship after marriage, period of separate marriage, separate marital relationship between husband and wife, various social situation and circumstances.

2) In light of the above legal principles, the following circumstances acknowledged by the evidence as seen earlier and the purport of the entire arguments, namely, ① even if the plaintiff and the defendant were to be in full-time separate living due to the plaintiff’s causes attributable to the plaintiff, the substance of marriage has been completely resolved and the plaintiff and the defendant have independent living relationship as they continue for a long-term period of not less than 25 years. ② As such, as the situation where the resolution of marital relationship between the plaintiff and the defendant was prolonged, the plaintiff’s responsibilities are considerably weak and the plaintiff’s responsibilities are also deteriorated as they are the following circumstances.

In light of the social perception and legal assessment of them are bound to vary, so the present situation is present.

In light of the legal significance and social significance of the Plaintiff and the Defendant’s failure as a standard for determining whether to divorce, it seems that the Plaintiff and the Defendant seems to have significantly decreased (abstinence). ③ The Defendant’s continued marriage with the Plaintiff is an element to be taken into account in general in determining whether to divorce. However, in full view of the period of separate marriage and the circumstances revealed in the oral proceedings of this case, it seems that the Defendant’s intention not to divorce is not to maintain only the legal relationship with the Plaintiff, which has lost the substance of marriage, formally, and it seems that the Defendant’s intention not to divorce would result in continuing to sustain the same situation as of the time of the Defendant’s continued marriage. Considering that the Plaintiff and the Defendant’s children born between the Plaintiff and the Defendant were unable to have suffered significant economic harm to the Plaintiff, and that the Plaintiff and the Defendant’s spouse were still unable to have sustained their marriage for a certain period of time, such as the Plaintiff’s birth and the Defendant’s non-litigation, and that there is no economic harm between the Plaintiff and the Defendant’s spouse.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and accepting the plaintiff's claim.

Judges Min You-sook

Judges fixed-term

Judges Kim Gin-tae