In a case where one spouse commits an unlawful act, whether one spouse is liable for damages arising from a tort (affirmative), and whether a third party is liable for damages arising from a tort against either spouse’s emotional distress (affirmative), and whether the act of infringing the couple’s community life or interfering with the maintenance thereof and infringing the spouse’s right as the spouse, thereby causing mental distress to the other spouse constitutes a tort (affirmative in principle) / Whether tort liability owed by either spouse and the third party is jointly and severally liable for tort (affirmative)

Husband and wife shall have the duty to live together and support and cooperate with each other (Article 826 of the Civil Act). Husband and wife shall have the duty to cooperate and protect each other as a community which is mentally, physically or economically combined, so that marriage as a marital life may be maintained, and have the right to such duty. As a matter of the duty to live together or to maintain a common life of both spouses, both spouses shall bear the duty of sexual sincerity that has to not engage in any unlawful act. If either husband and wife has committed an unlawful act, the husband and wife shall be liable for damages caused by a tort against mental suffering suffered by the spouse.

Meanwhile, a third party may not interfere with a married couple’s community life falling under the essence of the marriage by intervening in a married couple’s community life of another person. In principle, a third party’s act of infringing on or interfering with a married couple’s community life falling under the essence of marriage and infringing on a spouse’s right as the spouse, thereby causing mental distress to the spouse.

In addition, tort liability borne by either spouse and the third party is jointly and severally liable as joint tort.

Articles 751, 760, and 826 of the Civil Act

Supreme Court en banc Decision 2011Meu2997 Decided November 20, 2014 (Gong2014Ha, 2361)

Plaintiff (Law Firm Professor, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Daegu Family Court Decision 2012Reu1078 decided May 23, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Husband and wife shall be liable to live together, and to support and cooperate with each other (Article 826 of the Civil Act). Husband and wife shall have the duty to cooperate and protect each other as a community combining mentally, physically, and economically, so as to maintain marriage as a common life of both spouses, and shall have the right to cooperate comprehensively between them so as to maintain their marriage as a common life. As such duty to live together or to maintain common life of both husband and wife, the husband and wife shall have the duty of sexual sincerity that should not engage in any unlawful act. If either husband and wife has committed a wrongful act, the husband and wife shall be liable to compensate for damages due to

Meanwhile, a third party shall not interfere with a married couple’s community life falling under the essence of the marriage by intervening in a married couple’s community life of another person and causing the failure of the married couple’s community life. A third party’s act of infringing on a married couple’s community life falling under the essence of marriage or interfering with the maintenance thereof by committing an unlawful act with either of the married couple, and infringing on a spouse’s right as the spouse, thereby causing mental distress to the spouse, in principle, constitutes tort (see Supreme Court en banc Decision 2011Meu297, Nov. 20, 2014).

In addition, tort liability borne by either spouse and the third party is jointly and severally liable as joint tort.

On the other hand, the court may not render a judgment on the matters not claimed by the parties without rendering a judgment, and the court shall not render a judgment on the basis of the facts not alleged by the parties, but the court may render a judgment on the legitimate interpretation of law on the substantive relation alleged as the cause of the claim, unless the objective substance of the claim appears to be identical (see Supreme Court Decision 94Meu826, 833 delivered on November 25, 194)

2. The Plaintiff’s infringement of the father’s right, which is the cause of a claim, is ultimately a quasi-joint and several liability, where a third party commits an unlawful act with the husband and wife, thereby taking part in an act that violates the obligations of the husband and wife against the husband and wife, thereby causing the failure of the marriage. However, the third party’s liability for damages against the husband and wife is not different from the assertion that

In the same purport, the court below is just to order the defendant to pay consolation money to the plaintiff jointly with the non-party on the premise that the defendant's liability is in a non-party's liability and in a non-joint and several relationship with the non-party on the premise that the relationship between the plaintiff and the non-party has reached a failure due to the illegal act of the defendant and the non-party, and there is no

3. Therefore, the appeal is 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 Kim Shin (Presiding Justice)