A. Whether a divorce lawsuit is terminated where one spouse dies during the duration of divorce lawsuit (affirmative)

(b) Whether the right to claim for the materials on divorce may be succeeded to as a right to a new binding force on the part of the exercise (affirmative)

A. Since the right to claim a judicial divorce is a personal and continuous right of the husband and wife, when one spouse dies while the divorce lawsuit is pending, the heir cannot take over it, and there is no special provision that the prosecutor can take over it, and the divorce lawsuit is terminated.

B. The right to claim for the materials on divorce is a right to claim the mental suffering of the other spouse where the other spouse's marital relationship is not extinguished due to unlawful act committed by the other spouse's fault and it is not established only by the divorce finalized, assessed, and the divorce at the time of divorce. As to whether it is possible to transfer or succeed the right to claim for damages arising from the dissolution of matrimonial engagement, Article 806 (3) of the Civil Act provides that the right to claim for damages arising from the dissolution of matrimonial engagement shall not be transferred or succeeded, but this provision shall apply mutatis mutandis to judicial divorce, since Article 843 (a) of the Civil Act provides that the above provision shall apply mutatis mutandis to the right to claim for the materials on divorce, in principle, even though the right to claim for the materials on divorce is not transferred or succeeded to by transfer or inheritance as a one-way right, which is a one-way right at the time of its exercise and is not a one-way right at the time of attribution. Thus, it is possible to transfer or succeed as long as the claimant has objectively expressed his/her external intent to claim for compensation

A. Article 840 of the Civil Act, Article 211 of the Civil Procedure Act, Article 843 of the Civil Act, Article 806(3) of the Civil Act

A. Supreme Court Decision 81Meu53 Decided October 12, 1982 (Gong1982, 1084) decided May 26, 1992 (Gong192, 2019)

Plaintiff 1 and one other (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 91Reu158 delivered on March 3, 1992

The part of the judgment below regarding the claim for consolation money shall be reversed and remanded to the Seoul High Court.

The remaining appeals by the plaintiffs are dismissed.

The costs of appeal dismissed shall be assessed against the plaintiffs.

As to the Plaintiffs’ grounds of appeal

According to the records, if the deceased non-party becomes the plaintiff and frequently assaults the plaintiff against the defendant who is the spouse, the plaintiff, even on September 8, 1989, he requested divorce and solatium amounting to 70,000 won on the ground that he is extremely maltreated by the second two parts of the plaintiff, and the court of first instance accepted part of the deceased non-party's assertion on March 13, 191, and sentenced the court of first instance to order the payment of solatium amounting to 15,00 won along with the divorce. The defendant appealed and the defendant appealeded to the court of first instance on August 19 of the same year while the lawsuit was pending in the court of original judgment, and the deceased non-party who was his parent, applied for the lawsuit by the plaintiffs.

The court below held that the plaintiff's divorce lawsuit of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of case of case of a divorce where one of the married couple's claim for judicial divorce has been terminated at the time of the death of one of the married couple while the divorce lawsuit of this case is pending, and the claim for consolation money of this case of this case of this case is inherited by one of the married couple. The court below held that the plaintiff's claim for consolation money of this case of this case of this case of this case of this case of this case of this case of this case of this case of case of case of a minor between the married couple and the other spouse, ethical and practical management of the child's living together with the other party, and the claim for consolation money due to divorce under Article 2 (1) (c) 2 of the Family Litigation Act of this case of this case of this case of this case of this case of this case of this case of case of this case of case of case of case of

Since the right to claim a judicial divorce is a binding right of the husband and wife, if one spouse dies during the duration of a divorce lawsuit, his/her heir cannot take over it, and in such a case, there is no special provision that the prosecutor can take over it, and the divorce lawsuit shall be terminated (see Supreme Court Decision 81Meu53 delivered on October 12, 1982).

However, the right to claim for the materials on divorce is a right to claim for mental suffering resulting from an unlawful act committed by a spouse, who is the other party, in case where the marital relationship is inevitable to be divorced due to the failure of the other party, and it is not established only by the divorce, which is finalized and assessed at the time of divorce. As to whether it is possible to transfer or succeed the right to claim for the materials on divorce, Article 806(3) of the Civil Act provides that the right to claim for damages arising from the cancellation of a matrimonial engagement cannot be transferred or succeeded to by transfer or succession, but the same shall not apply to cases where a contract on the compensation has already been established or a lawsuit has been instituted by the parties. Since Article 843 of the Civil Act provides that the above provision shall apply mutatis mutandis to judicial divorce, as a matter of principle, the right to claim for the materials on divorce shall not be a right to claim the transfer or inheritance, but this shall not be a right to claim the right to claim the damages, and it shall be possible to exercise the right to claim the damages objectively, such as transfer or succession.

As seen earlier, the applicant for succession is the parent of the deceased Nonparty and the co-property heir together with the Defendant. As such, the part concerning the claim for divorce among the claim for succession of this case filed by him is unlawful. However, the part concerning the claim for divorce data is lawful within the scope of his share of inheritance.

The judgment of the court below is not erroneous in the misunderstanding of legal principles as to the nature of the claim for data on divorce, which affected the conclusion of the judgment. This part is with merit.

For the above reasons, the part of the judgment of the court below concerning the claim for consolation money is reversed, and this part of the case is remanded to the court below. All appeals are dismissed in respect of the part concerning the claim for divorce, and the costs of appeal are assessed against the losing party. It is

Justices Yoon Young-young (Presiding Justice)