2016dward482 Divorce

Article 00 (Heads 59)

Address Ma-si

Reference domicile:

Attorney Lee Do-young

Article 50 (Embio 56)

Busan Address

Reference domicile:

September 7, 2016

September 28, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The plaintiff and the defendant are divorced.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who reported their marriage on June 1979, and have two adult children among them.

B. The Plaintiff, while married with the Defendant, was believed to have a franking religion according to the Defendant’s religion, and was also faithful to the Defendant’s family.

C. In addition, on 1989, the Plaintiff went to death of a woman called around 00, and the Defendant, who became aware of this, demanded that the Plaintiff liquidate the relationship with Park 00 on several occasions.

D. However, the Plaintiff failed to adjust the relationship with Park 00, and instead, it did not enter the house from around 1999 to around 192, with the building of a maintenance factory in Ulsan and doing work at that place.

E. On December 20, 2001, the plaintiff filed a divorce lawsuit with the Busan District Court (hereinafter referred to as the "former lawsuit of this case") on the ground that "the plaintiff and the defendant brought a divorce lawsuit with the Busan District Court's family branch office (hereinafter referred to as "the previous lawsuit of this case") on the following grounds: "The plaintiff and the defendant brought a divorce lawsuit (hereinafter referred to as "the previous lawsuit of this case") on the grounds that the plaintiff and the defendant brought a divorce lawsuit with the Busan District Court's family branch office (hereinafter referred to as "the previous lawsuit of this case").

F. However, in the previous litigation of this case, the plaintiff's assertion was rejected, and since the failure of marriage between the plaintiff and the defendant was caused by the plaintiff's misconduct, etc., the plaintiff, a responsible spouse, could not file a claim for divorce as the defendant. The plaintiff's dismissal decision was rendered on July 3, 2002. The plaintiff appealed (202729) but was dismissed on November 8, 2002, and the above judgment became final and conclusive.

G. After that, both the Plaintiff and the Defendant did not exchange with each other in addition to attending the marriage ceremony of their children, and have been living separately until now. Moreover, the Defendant considered his children to be living alone, and did not comply with the Plaintiff’s request for divorce.

[Ground of recognition] Gap evidence 1 to 5, 7, 8, 9 (including branch numbers; hereinafter the same shall apply), Eul evidence 1 to 15, and the purport of the whole pleadings

2. Determination on the claim for divorce

A. The plaintiff's assertion

The plaintiff was frequently disputed with the remaining families, etc. that the defendant was excessively living in religion, and as a result, the plaintiff and the defendant were living in a long period of time, and thus, they are married with the plaintiff and the defendant.

The plaintiff's claim for divorce should be allowed, since the fraternity has reached a situation where it is no longer able to recover.

B. Determination

(1) The failure and the accountability of a matrimonial relationship

(A) If 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 Act, "if there is a serious reason for making it difficult to continue the marriage," the term "in accordance with the essence of the marriage which should be based on the difficulty and trust between the married couple, it refers to the case where the marital relationship has been broken down to the extent that it is impossible to recover and compelling the continuance of the marital life becomes an unreceptable pain for one spouse. In determining this, the existence of the intention to continue the marriage, the existence of the party's liability for the cause of the failure, the existence of the party's liability for the cause of the failure, the existence of the child, the age of the party, the livelihood security after the divorce, and other circumstances of the marital relationship shall be taken into consideration. In addition, if it is deemed that the marital relationship of the married couple has been broken to the extent that the marital relationship is no longer able to follow the defendant's liability for the cause of the failure, a divorce claim shall be accepted unless it is recognized (see, e.

(B) According to the above facts, it is reasonable to view that the principal source of the failure is the Plaintiff, as the Plaintiff and the Defendant were in a de facto state of bankruptcy due to their prolonged separation. Accordingly, the Plaintiff, who is the responsible spouse, may not file a claim for divorce against the Defendant.

(2) Whether to allow a divorce by a responsible spouse

(A) The Supreme Court’s precedent does not allow a divorce claim by a responsible spouse is likely to be in conflict with the morality required by the marriage system and prevent any consequences contrary to the good faith principle. Thus, even in light of the ideal of the marriage system and the good faith principle, if the responsibility of the spouse does not remain to the extent of rejecting the claim for divorce at the time when the liability is not contrary to the principle of good faith, the claim for divorce claim by the spouse is not likely to undermine the marriage and family system, and it does not go against the moral view and ethical view of the society.

In other words, in cases where the other party's spouse has no intention to continue the marriage and there is no concern about divorce or divorce by one's will, and in cases where protection and consideration is given to the other party's spouse and his/her children as well as to offset the responsibilities of the other party's spouse who requested divorce, the claim for divorce by the responsible spouse can be allowed exceptionally in cases where there are special circumstances where the responsibilities for the failure of the marital life are not remaining to the extent of rejecting the claim for divorce, such as in cases where the responsibilities of the responsible spouse who was remarkably responsible for the failure of marriage at the time of the marriage and the mental suffering of the other spouse's spouse is gradually weak as at the end of the last month.

As such, in determining whether a claim for divorce by a responsible spouse may be exceptionally permitted, the following should be taken into account: (a) the attitude and degree of liability of the responsible spouse; (b) the other spouse’s appraisal of the other spouse’s intention to continue marriage and the responsible spouse; (c) the age of the party; (d) the period of marital life and the specific living relationship after marriage; (c) the period of separate life; (d) the living relationship formed after marriage between the married couple; (e) whether a variety of circumstances have been changed after the failure of marital life; (e) the other spouse’s mental, social, and economic condition; (e) the degree of livelihood security; (f) the child’s parenting, education, and welfare status; and (f) other circumstances of marriage (see Supreme Court en banc Decision 2013Meu568, Sept. 15, 2015).

(B) In light of the various circumstances indicated in the arguments of this case, such as the following facts acknowledged earlier and the facts acknowledged as above, that is, the Plaintiff’s failure to make a serious effort to recover the marital relationship between the Plaintiff and the Defendant, and the Plaintiff is filing the instant lawsuit without seeking a serious effort, and the Defendant is consistently opposed to the divorce between the Defendant and his/her family members from the previous lawsuit of this case to the instant case, and it does not appear that the Plaintiff did not respond to the Plaintiff’s claim for divorce due to a clerical error or retaliation, and it is difficult to view that the Plaintiff paid the Defendant living expenses during the period of his/her stay or considered the Plaintiff’s care and care to the extent that the Plaintiff’s liability would be offset. Accordingly, the Plaintiff’s claim for divorce cannot be determined exceptionally, and thus, the Plaintiff’s claim for divorce cannot be justified.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-chul