2019Ro122 Nullity of marriage

A

Section B.

Busan Family Court Decision 2018Ddan8398 Decided June 14, 2019

February 12, 2020

March 18, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the defendant.

1. Claims;

On April 13, 2018, the Plaintiff and the Defendant reported to the head of the Busan Metropolitan City ○○○ on April 13, 2018.

Marriage is confirmed as null and void. Preliminaryly, Busan Metropolitan City on April 13, 2018 between the Plaintiff and the Defendant.

(1) The marriage reported to the head of the Gu shall be revoked.

2. Purport of appeal;

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on this safety defense

A. The Plaintiff asserts to the effect that the Defendant’s subsequent appeal is unlawful, since he was aware of the fact that the instant lawsuit was pending from around 2018.

B. Subsequent completion of the procedural acts stipulated in Article 173(1) of the Civil Procedure Act can be done when the parties are unable to comply with the peremptory period due to a cause not attributable to them. Here, "reasons not attributable to the parties" refers to a case where the parties were unable to comply with the period despite their due care to perform the procedural acts (see, e.g., Supreme Court Decision 2015Da21322, Aug. 13, 2015). If the document was served by means of this public notice, such as a copy of the complaint and the ruling, a copy of the ruling, etc., the defendant was unable to be served without negligence. In such a case, the defendant constitutes a case where the peremptory period cannot be complied with due to a cause not attributable to him, and thus, the defendant may complete subsequent completion of the appeal within 20 weeks from the date on which such cause ceases to exist, and it shall be deemed that the parties or their agents were not aware of the fact that the original copy of this case was served within 10 weeks from the date when the judgment was served by public notice.

C. On September 19, 2018, Plaintiff filed a lawsuit seeking confirmation of the invalidation of marriage and the revocation of marriage in preliminary option against the Defendant. On September 19, 2018, the court of first instance rendered a judgment citing the Plaintiff’s primary claim on June 14, 2019 after serving a notice of the complaint and the date of pleading on the Defendant by public notice. The original judgment also was served on the Defendant by public notice, and the Defendant was issued a certificate of delivery and confirmation of the judgment of the first instance on September 2, 2019. The original judgment of the first instance was issued on September 5, 2019; the Defendant submitted a subsequent supplement to the judgment of the first instance on September 18, 2019.

According to the above facts, without negligence, the defendant was unaware of the fact that the judgment of the first instance was delivered by service by public notice. The date such reason ceases to exist for the defendant should be viewed as on September 5, 2019 when the defendant was issued the original copy of the judgment of the first instance, not on September 2, 2019, but on September 2, 2019 when the original copy of the judgment of the first instance was issued ( even based on the circumstances alleged by the plaintiff and the evidence submitted by the plaintiff, it is difficult to view that the defendant was aware of the fact that the judgment was delivered by public notice by public notice) and that the appeal of this case was made within two weeks thereafter.

D. Therefore, the plaintiff's defense of this case is without merit.

2. Judgment on the main claim

(a) Applicable law;

According to Article 36(1) of the International Judicial Act, the law of nationality of each party to a marriage is the law of nationality with respect to the actual requirements of the establishment of marriage. As such, the applicable law of this case is the Civil Act of the Republic of Korea with respect to the plaintiff and the law of marriage in Vietnam with respect to the defendant. However, the data on the law of the Vietnam marriage have not been submitted to this court, and there is no other method to know, so the Civil Act of the Republic of Korea, a law of the suspension of law, should be applied.

B. The Plaintiff is a male with Korean nationality, and the Defendant is a female with Korean nationality. (2) The Plaintiff and the Defendant completed the marriage report on March 29, 2018. On April 13, 2018, the Plaintiff submitted a marriage certificate to the head of the Si/Gun/Gu in Busan Metropolitan City, and completed the marriage report on July 2, 2018. (3) The Defendant entered the Republic of Korea on July 2, 2018, and issued a foreign registration certificate from the Busan Immigration Office on August 11, 2018, and released on August 11, 2018. (4) The Defendant did not have a relationship between the Plaintiff and the Defendant due to the Defendant’s refusal to leave the Republic of Korea.

[Grounds for recognition] Gap 1, 2, 5, 7, and 8 each entry, Gap evidence 9-1 to 4, and the purport of the whole pleading

C. Determination

Article 815 subparag. 1 of the Civil Act refers to a case where there is no agreement between the parties to a marriage that provides for grounds of nullity of marriage, “when there is no agreement between the parties to a marriage,” the term “when there is no agreement between the parties to a marriage between the parties to a marriage,” refers to the case where there is no agreement between the parties to make a mental or physical combination recognized as a couple under the social concept. As such, only one of the parties has the intent to establish the marital relationship, and the other party lacks such intent. If there is no intention to establish the marital relationship, even if there is an agreement between the parties to a marriage report itself, the marriage shall be deemed null and void as there is no agreement between the parties to a marriage.

In addition, the facts acknowledged above are as follows. Gap evidence Nos. 11-2 and 3, Gap evidence Nos. 10-1 and 2 were sent out only one month after the defendant entered the Republic of Korea. After the release, the defendant sent out the SNS under the defendant's name, "I do not have any time to live if I wish to do so," and "I expect that I do not have any time to expect to do so," and "I do not have any way to expect that I do not have a male but any money." After entering the Republic of Korea, the defendant did not have any evidence to acknowledge that the plaintiff properly treated the defendant to the extent that I would go out only one month after entering the Republic of Korea, and the defendant did not intend to temporarily enter the Republic of Korea for the purpose of marriage and to obtain the status of stay from the plaintiff without any genuine intention to enter the Republic of Korea. Even if the defendant did not intend to make a marriage for the purpose of marriage and to obtain the status of stay from the plaintiff.

Therefore, there is no agreement between the Plaintiff and the Defendant as to the intention of marriage. As such, marriage reported to the head of the Busan Metropolitan City ○○ on April 13, 2018 between the Plaintiff and the Defendant is null and void by Article 815 subparag. 1 of the Civil Act (as long as Plaintiff’s primary claim of this case is accepted, no separate judgment is made as to the conjunctive claim).

3. Conclusion

The plaintiff's primary claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed on the grounds that it is not reasonable.

Judge Lee Il-ju

Judge O Sang-hun

Judges Dogdogia