Whether a female and a female are liable for tort in relation to the female's children (negative)

In a case where a female has been married with a female who has a spouse, and thereby a female has caused the failure of the marriage due to a separate divorce from his/her spouse, etc., a third party who has committed an act of adultery with the female spouse shall constitute a tort against the female's spouse, and thus, the female's mental suffering suffered by the female's spouse shall be held liable for tort against the female's spouse. However, even in such a case, the female who committed an act of adultery cannot be held liable for tort against his/her child, and the third party who has committed an act of adultery with the female shall also be held liable for tort against his/her child, unless there are special circumstances such as actively preventing the female's raising, protecting, or culture of the female's child.

Article 751 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other (Seoul International Law Firm, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant

Seoul District Court Decision 2002Na58852 delivered on November 13, 2003

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

In a case where a female has been married with a female who has a spouse, and thereby a female has caused the failure of the marriage due to a separate divorce from his/her spouse, etc., a third party who has committed an act of adultery with the female spouse shall constitute a tort against the female's spouse and thereby, the female's mental suffering suffered by the female's spouse shall be deemed to be liable for tort against the female's spouse. However, even in such a case, even if the female who committed adultery cannot be held liable for tort against his/her child, and a third party who has committed adultery cannot be held liable for tort against the female's child, unless there are special circumstances such as actively preventing the female's raising, protection, or culture of the female's child.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged facts as stated in its reasoning. "The defendant knew that he was a woman, and caused the failure of the marital relationship between the non-party and the co-Plaintiff at the court below, and due to this, the plaintiffs, who are children between the non-party, are liable for mental harm inflicted upon the plaintiffs." As to the plaintiffs' assertion that "the defendant is liable for mental harm inflicted upon them, since the maintenance of marital relationship and the non-party are determined by the free will of the couple, the issue of whether he was a child and his own consciousness, and even if the woman was divorced from her husband and her child and left separately with her child, she cannot be held liable for tort by the non-party's act of inter-child and the non-party's act of inter-party and the non-party's act of inter-party's mental harm cannot be deemed to be held to be liable for tort in relation to the plaintiff's child, and the non-party's act of co-party's mental harm and non-party's act of the plaintiff 2.

In light of the above legal principles and the records, the above recognition and judgment of the court below are acceptable, and there is no error in the misapprehension of legal principles as to damages or in failing to exercise the right of explanation, as otherwise alleged in the ground of appeal.

Therefore, all appeals are dismissed, and the 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 Lee Hong-hoon (Presiding Justice)