[1] The meaning of "when one has been extremely maltreated by his spouse, who is a reason for divorce under Article 840 subparagraph 3 of the Civil Code"

[2] The meaning of "where there is a serious reason for making it difficult to continue the marriage, which is a reason for divorce under Article 840 subparagraph 6 of the Civil Code"

[3] Whether a spouse who is mainly responsible for the failure of marriage (negative)

[4] Relationship between the duty of living, support and cooperation between husband and wife and the reason for divorce

[1] "When one of the parties to a marriage is extremely maltreated by his/her spouse, who is a reason for divorce under Article 840 subparagraph 3 of the Civil Code," refers to a case where one of the parties to a marriage has received violence, abuse, or serious insult to the extent that it is deemed that force the other spouse to continue the marriage relationship is harsh.

[2] "Other important grounds for divorce under Article 840 subparagraph 6 of the Civil Code, which are grounds for divorce, exist" refers to cases where a marital relationship corresponding to the essence of marriage, which should be based on difficulties and trust between the married couple, has reached a failure to the extent that it is impossible to recover, and compelling the continuation of the marital life to the extent that it becomes impossible for one spouse to join.

[3] In principle, a claim for divorce by a spouse who is mainly responsible for the failure of the marital life is not allowed.

[4] A marriage is a combination which is a moral and scenicly justifiable one for the purpose of a common life of a single life on the basis of the circumstances of gender and has a duty to live together and support and cooperate with each other (Article 826(1) of the Civil Code). Thus, in the case of a marital life, the married couple shall make best efforts to maintain the marital life by understanding and protecting the other party by reliance, good faith and awareness. Even in the case where there are several circumstances impeding the marital life, the married couple shall make every effort to overcome such disability, and there shall not be any act causing failure of the marital life on the ground that there are circumstances impeding harmony between the couple in time and time. Accordingly, the nature of marriage between the couple and the duty to support and cooperate is requested by the couple for the purpose of a common life aiming at a single-living life on the basis of patriotism and trust, and there may not be any difference between the married couple or the married couple by failing to cooperate with it, and it constitutes a reason for judicial divorce or guidance of the married spouse without any justifiable reason.

[1] Article 840 subparagraph 3 of the Civil Code / [2] Article 840 subparagraph 6 of the Civil Code / [3] Article 840 of the Civil Code / [4] Article 826 (1) and Article 840 subparagraph 2 of the Civil Code

[1] Supreme Court Decision 80Meu9 delivered on October 13, 1981 / [2] Supreme Court Decision 87Meu24 delivered on July 21, 1987 (Gong1987, 1393) Supreme Court Decision 90Meu1067 delivered on July 9, 199 (Gong1991, 2158) / [3] Supreme Court Decision 88Meu740 Delivered on June 27, 1989 (Gong1989, 1164 delivered on September 25, 1990), Supreme Court Decision 89Meu112 delivered on September 23, 198 (Gong190, 2156) and Supreme Court Decision 92Meu1078 delivered on April 23, 1993 (Gong1984 delivered on May 29, 197)

Plaintiff (Attorney Kim Jong-kon, Counsel for plaintiff-appellant)

Defendant (Attorney Full-time, Counsel for the defendant-appellant)

Seoul High Court Decision 96Reu2613 delivered on February 21, 1997

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the first instance judgment cited by the lower court, the facts and judgment acknowledged by the lower court are as follows.

The plaintiff (the plaintiff et al. of March 26, 1934) had a smooth marital life, including the defendant (the plaintiff et al. of April 27, 1925) who had been operating a company with 2 South and North 4 women living alone between the former and the former and the former who had been living in her own body for more than 40 years of age, and had not given birth between the defendant and the former and the latter, but after having reported the marriage on Nov. 12, 197, the plaintiff (the plaintiff et al. of March 26, 1934) had not given birth to 2 South and North son except for the elderly among the children of the former and the latter.

However, the defendant returned home from time to time to time with friends, drinking alcohol, etc. while living together with his own golf without having contact with the plaintiff, but he did not want to do so by the plaintiff, such as moving to a alumni meeting or a joint meeting. When the plaintiff and the plaintiff are in a minor opinion conflict with each other, the defendant saw that he will take friend without having a conversation. The defendant saw that he will go in a way that he will go in a way that he will go in a way without having a conversation.

In addition, the defendant under the influence of alcohol around September 1981, and the plaintiff was sleeped with the plaintiff, and the plaintiff was sleeped with the plaintiff, and around November 1984, the plaintiff was slicked with his her son and son's son and son's son were slick with the plaintiff, so they were slick with the plaintiff and son's son and son's son's son's son's son's son's son's son's son's son's son's son's son's 6th son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's 9th son's son's son'.

The plaintiff, even though her former son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's

On the other hand, the plaintiff, who is the head of the birth of the non-party who was the head of the non-party before the defendant's birth, got married to another woman, and then the non-party became to move to the United States around November 1986, and the defendant would sell the apartment in his name and use it as business fund to the non-party. In addition, when the non-party returned to the Republic of Korea on a temporary basis on 1987, the plaintiff would not cause inconvenience for the plaintiff to live together with the non-party's husband and wife when the non-party returned to Korea on 1987.

Based on the above facts, the court below determined that the marital relationship between the plaintiff and the defendant has reached a failure to recover as much as possible, and determined that the plaintiff did not think of the child of the plaintiff before the defendant's birth and did so even after leaving his house without any special opportunity. However, the more fundamental and main responsibility lies in the defendant who had done a so-called voluntary action, such as making the plaintiff achieve his own assertion if he is found to have been aware of the minor opinion without considering the plaintiff who lives without his own consciousness during the period of marriage, and pushing the plaintiff, and thus, it constitutes a cause for judicial divorce as prescribed in subparagraphs 3 and 6 of Article 840 of the Civil Act. Accordingly, the court below accepted the plaintiff's claim for divorce and ordered the defendant to pay consolation money and division of property according to the divorce.

2. As to the grounds of appeal on the violation of the rules of evidence

According to the reasoning of the judgment of the court below, the court below acknowledged facts based on the evidence adopted in its judgment and rejected all the testimonys of the defendant's witness without any special reasons, but the court does not necessarily have to state its reasons in judging the value of evidence. Thus, the court below's judgment is not erroneous in the violation of the rules of evidence or the lack of reasons. The grounds for appeal as to this point cannot be accepted.

3. As to the ground of appeal on the misapprehension of legal principles as to the causes of divorce

A. "When one of the parties to a marriage is extremely maltreated by the spouse, which is a reason for divorce under Article 840 subparagraph 3 of the Civil Act" refers to the case where one of the parties to a marriage has received violence, abuse, or serious insult to the extent that it would be harsh that it would compel the other spouse to continue the marriage (Supreme Court Decision 80Meu9 delivered on October 13, 1981), and "if there is any other serious reason that it is difficult to continue the marriage," which is a reason for divorce under subparagraph 6, "if there is any other reason that it is difficult to continue the marriage," the case refers to the case where the marital relationship corresponding to the essence of the marriage, which should be based upon the difficulty and trust between the couple, has been broken down to the extent that it is impossible for the other spouse to recover the marital life, and compelling the continuation of the marital life, which means the case where the other spouse is forced to continue the marriage (Supreme Court Decision 87Meu24 delivered on July 21, 1987; 90Meu284 delivered on July 19, 197).

On the other hand, the marriage is a combination of moral and morally justifiable and binding parties for the purpose of a common life of one's own life on the basis of the circumstances of gender, and there is a duty to live together and support each other and cooperate with each other (Article 826 (1) of the Civil Act). In the course of marriage, the married couple shall make their best efforts to maintain the marital life by understanding and protecting the other party through patriotism, faith and awareness. Even if there are cases where there are many circumstances that obstruct the marriage life, the married couple shall make every effort to overcome such obstacle and shall not commit any act that may cause the failure of the marital life on the ground that there are circumstances under which the harmony between the couple is obstructed (see Supreme Court Decisions 82Meu4, Jul. 13, 1982; 95Meu61, Dec. 22, 1995, etc.).

Such a couple’s duty of living, support, and cooperation is requested by the essence of marriage for the purpose of a community life aiming at a single-living life on the basis of patriotism and trust. It is not possible to change between husband and wife or between a married couple. The principle of guidance for evaluation and judgment as to the grounds for judicial divorce is operated as a guiding principle of judgment. If the spouse’s spouse’s duty of living together, support, and cooperation as a couple without justifiable grounds and abandons the other spouse’s duty of living together, support, and cooperation, it constitutes abandonment of bad faith, which is the grounds for judicial divorce (Supreme Court Decision 96Meu1434 delivered on April 10, 1998).

B. However, according to the records, the plaintiff and the defendant were married for about 18 years prior to their separate lives, and there was conflict and fires between the husband and wife and the former wife as acknowledged by the court below, but the defendant invited the plaintiff's friendship to sing and talk with the plaintiff's friendship (the plaintiff was a hobby life) at the time when she sing and talks with the plaintiff's friendship (the plaintiff was a hobby life). The plaintiff who participated in the joint presentation meeting to sing to sing to sing to sing to sing to sing to sing to 5 years before sing to sing to sing to 93 and 60 million won for each month as the defendant's living expenses (the plaintiff was 60,000 won after 193 and 600,000 won), but the plaintiff's remaining sing to sing to sing to sing to sing to 9 years and 3 years after sing to sing to 9.

C. In light of the above legal principles and overall circumstances, such as the age of the plaintiff and the defendant, the intention to continue the marriage, the period of marital life, and the overall circumstances of the marital life, it is difficult to view that the defendant's series of actions against the plaintiff by the defendant, recognized by the court below, as violence, abuse, or serious insult to require the continuation of the marital relationship, constitutes a case where the plaintiff was extremely maltreated by the spouse, who is the reason for divorce under Article 840 subparagraph 3 of the Civil Act. Accordingly, it is difficult to continue the marital relationship between the plaintiff and the defendant as well as there is any other serious reason that it is difficult to recover the marital relationship between the plaintiff and the defendant, and even if the marital relationship between the plaintiff and the defendant becomes no longer difficult to recover, the principal responsibility for the failure to maintain the marital relationship with the plaintiff by resolving conflicts and emotional conflicts between the couple and the previous wife and to maintain the marital life and by failing to make efforts to maintain the marital behavior at all as to the defendant's life and the defendant's moral behavior cannot be seen as being in the situation of the defendant's life.

Therefore, the court below did not err by misapprehending the legal principles on judicial divorce and by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)