2020Meu14763 and consolation money

Plaintiff:

Attorney Lee Ji-hoon et al., Counsel for the defendant-appellant

Defendant:

Daegu Family Court Decision 2020Reu5976 Decided October 8, 2020

on March 25, 2021

The judgment below is reversed, and the case is remanded to the Daegu Family Court.

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. On October 2016, the Defendant, a national of the Republic of Korea, completed the marriage report of the Plaintiff, who is a national of Vietnam, or on August 17, 2017, and did not have a child among them.

B. On February 2018, the Defendant received text messages that “a person who gets mixed” from the Plaintiff after the Defendant fighting the couple, and assaulted the Plaintiff at the time of the Plaintiff’s her bucket.

C. On May 2018, 2018, the Plaintiff was employed by the Plaintiff and the Defendant frequently disputed the Plaintiff’s outing outing or outing due to frequent time. On March 13, 2019, the Defendant assaulted the Plaintiff at the time on the ground that the Plaintiff was late returning home.

D. On March 14, 2019, the Plaintiff and the Defendant filed an application for divorce with the court on the filing of the application on March 14, 2019, but the Defendant did not divorce but threatened the Plaintiff by taking advantage of the Plaintiff’s head, walking the Plaintiff’s exhauster and head with his hair, causing the injury of the Plaintiff, and using the kitchen knife in the kitchen, which was located in the kitchen, in both hands, in both hands, and by taking the kitchen knife in the same way as in the foregoing.

The plaintiff did not go home and return home with the above assault.

E. On October 31, 2019, the Defendant was sentenced to a fine of KRW 5 million on the grounds of the assault by the Daegu District Court 2019Ma768, Mar. 13, 2019, and the assault by the Defendant on March 14, 2019, and special intimidation.

2. Lower judgment

While recognizing the Defendant’s violent exercise, the lower court did not accept the Plaintiff’s claim for divorce on the grounds that it is difficult to readily conclude that the Plaintiff was extremely maltreated by the Defendant, or that the Plaintiff’s marital relationship between the Plaintiff and the Defendant was no longer recovered.

A. On February 2018, the Plaintiff and the Defendant settled with the Plaintiff’s private village arbitration after the Defendant’s assaulted, and the marriage ceremony was raised on April 22, 2018.

B. Around May 2018, the Plaintiff was employed as a production-based worker and accumulated friendly ties with the same nationality’s work bonus, and the Plaintiff continued to have the time of returning home as agreed with the Defendant, and thereby, the conflict between the Plaintiff and the Defendant was not interrupted.

C. Although the Plaintiff received a continuous point of view as to frequent outing time, time of returning home, or place of stay from the Defendant, the Plaintiff, as a husband and wife, did not endeavor to improve his or her behavior with a sense of responsibility for maintaining the matrimonial relationship, but did so by seeking a unilateral understanding to the Defendant or by responding to the request for divorce.

D. In light of these circumstances, the Defendant’s assault appears to have been caused by temporary and contingent appraisal during the marriage period, and thus, it is insufficient to recognize that the Plaintiff was subject to assault or abuse to the extent that it would be harsh to compel the Defendant to continue the marriage during the marriage period. In such a case, it is difficult to see that the cause of the Plaintiff’s separate marriage is attributable to the Defendant, and the Defendant consistently expresses his intention not to want the divorce with the Plaintiff from the time of the Plaintiff’s departure to the time of the instant lawsuit. In light of the above, it is difficult to conclude that the relationship between the Plaintiff and the Defendant has come to a failure to the extent that it would no longer be recovered.

3. Supreme Court Decision

However, the lower judgment is difficult to accept for the following reasons.

A. “When one is extremely maltreated by his/her spouse, who is a reason for divorce as stipulated in Article 840 subparag. 3 of the Civil Act” refers to a case where he/she received violence, abuse, or insult to the extent that compelling the continuation of a matrimonial relationship would be harsh (see Supreme Court Decision 97Meu612, Feb. 12, 199).

"When there is a serious reason for making it difficult to continue the marriage, which is a reason for divorce prescribed in subparagraph 6 of Article 840 of the Civil Act" means the case where the marital relationship corresponding to the essence of the marriage, which should be based on difficulties and trust between the married couple, has been broken down to the extent that it is impossible to recover, and enforcing the continuation of the marital life, becomes a cause for which one’s spouse is unable to join. In determining this, the existence of marital continuation, the existence of the party’s liability regarding the cause of the failure, the period of marital life, the existence of the party’s age, the party’s age, the party’s age, the guarantee of livelihood after the divorce, and other circumstances of the marital relationship, shall be taken into consideration. If it is deemed that the marital relationship between the married couple has been broken to the extent that it is impossible to take account of such circumstances, the Plaintiff’s responsibility for the cause of the failure shall be accepted unless it is deemed that the Defendant’s liability is greater than the Defendant’s liability (see, e.g., Supreme Court Decisions 90Meu 10Meu1140Meu10.).

B. Since the defendant has a habitual residence in the Republic of Korea as a national of the Republic of Korea, the law applicable to divorce pursuant to the proviso of Article 39 of the Private International Act is the

As seen earlier, the Defendant repeatedly exercised violence against the Plaintiff. In particular, at the time of the assault on March 14, 2019, the Defendant, while walking the Plaintiff’s ship and head with the kitchen knife and knife each on the two hand, knew of the fact that the Defendant made intimidation as if he would inflict harm on the Plaintiff’s life, and the degree of the use of the violence is heavy.

As to the Defendant’s violent exercise, the lower court seems to have judged that the Plaintiff’s continuous divorce was stimulated by demanding the Defendant rather than seeking to improve his or her behavior while continuously being pointed out by the Defendant. However, such circumstance alone cannot be deemed as a ground for rejecting the Plaintiff’s claim for divorce.

Rather, considering the circumstances such as the existence of the party's intention to continue marriage, the existence and seriousness of the party's responsibility for the cause of failure, the period of marital life, the existence of children, and the age of the party, which are shown in the record, the plaintiff and the defendant can no longer recover from the relationship before the use of violence by the defendant.

Considering these circumstances in light of the above legal principles, it is reasonable to view that the defendant's act not only constitutes unfair treatment against the plaintiff, but also the marital relationship between the plaintiff and the defendant has been broken down to the extent that it is impossible to recover because the defendant's difficulty and trust should be the basis of the defendant's violent act has been lost. It constitutes a cause for judicial divorce under Article 840 subparagraph 3 or 6 of the Civil Act

Nevertheless, the lower court rejected the Plaintiff’s claim for divorce on the grounds that the Plaintiff was responsible for causing the Defendant to exercise violence. In so doing, the lower court erred by misapprehending the legal doctrine on the grounds for divorce as prescribed in subparagraphs 3 and 6 of Article 840 of the Civil Act, thereby adversely affecting the conclusion of the

4. Conclusion

The Plaintiff’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok