Whether the existence of an intention of marriage can be presumed in a case where it is unclear between the parties in a de facto marital relationship (affirmative)

The agreement of marriage refers to an agreement that establishes a legally effective marriage under the legal system of our country that adopts the principle of legal divorce. Thus, even if one party 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 intention of marriage is unclear, the existence of the intention of marriage can be presumed on the basis of the other party’s act that formed a de facto marital relationship in accordance with the practice of marriage and the principle of good faith. Thus, unless there are circumstances such as clearly withdrawing the intention of marriage or the other party’s agreement to resolve a de facto marital relationship, the marriage

Articles 812 and 815 subparag. 1 of the Civil Act

Supreme Court Decision 79Meu77 delivered on April 22, 1980 (Gong1980, 12828) Supreme Court Decision 83Meu22 delivered on September 27, 1983 (Gong1983, 1591) Supreme Court Decision 84Meu71 delivered on October 10, 1984 (Gong1984, 1797), Supreme Court Decision 93Meu935 delivered on May 10, 1994 (Gong194, 1690), Supreme Court Decision 94Meu1089 delivered on June 28, 1996 (Gong196Ha, 2373)

Plaintiff (Law Firm Seocheon General Law Office, Attorneys Transferred-won et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Family Court Decision 98Reu896 delivered on June 24, 1999

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

We examine the grounds of appeal.

1. As to the misapprehension of legal principle

The agreement of marriage refers to an agreement that establishes a legally effective marriage under the legal system of our country that adopts the principle of legal divorce. Thus, even if one party 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 (see Supreme Court Decisions 83Meu22, Sept. 27, 1983). However, in a case where the intention of marriage of the other party is unclear, the existence of the intention of marriage can be presumed on the basis of the other party that formed 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 his intention of marriage or agreed to resolve a de facto marital relationship, the marriage shall not be null and void (see, e.g., Supreme Court Decisions 79Meu77, Apr. 22, 1980; 93Meu935, May 10, 1994).

Although the judgment of the court below is somewhat inappropriate, it is just in accordance with the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the Civil Act and the Family Register Act.

2. The incomplete hearing and the misconception of facts against the rules of evidence

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning, and dismissed the plaintiff's claim claiming invalidation of the marriage report of this case on the ground that there are no circumstances such as agreement between the plaintiff and the defendant in a de facto marital relationship to resolve the de facto de facto de facto marital relationship or the plaintiff withdrawn his intention

According to the records, at the time of the report of marriage of this case, the plaintiff and the defendant were in a de facto marital relationship, and there is no evidence to support that the plaintiff clearly withdrawn his intention to marry prior to the report of marriage of this case or agreed to resolve a de facto marital relationship with the defendant. Thus, the court below's findings of fact and decision to the same purport are just, and there is no error of law in matters of misconception of facts

3. Therefore, the appeal is dismissed and all 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 Cho Chang-chul (Presiding Justice)