[1] The case where a responsible spouse's right to divorce is recognized

[2] The case holding that it cannot be concluded that the defendant's refusal to accept a divorce claim in a clerical error or retaliation appraisal without the intention to continue the marriage merely because the plaintiff, who is the responsible spouse at the fact-finding or mediation date, consented to the amount of consolation money, etc. at defendant's presentation

[1] As a matter of principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of such failure. However, even if it is objectively evident that the other party has no intention to continue the marriage after the failure, it is exceptionally admitted to the claim for divorce by the responsible spouse only in extenuating circumstances, such as where he/she is unable to comply with the divorce in misunderstandings

[2] The case holding that even if the defendant stated that he would proceed to divorce if he/she consented to the amount presented by the defendant as to consolation money or monetary liquidation due to divorce at the date of the first instance trial and the date of conciliation in the original trial, such circumstance alone is objectively obvious that the defendant has no intention to continue marriage, it cannot be concluded that he/she did not respond to the plaintiff's claim for divorce, which

[1] Article 840 of the Civil Code / [2] Article 840 of the Civil Code

[1] Supreme Court Decision 86Meu28 delivered on April 14, 1987 (Gong1987, 810), Supreme Court Decision 91Meu177, and 184 delivered on November 26, 1993 (Gong1994, 202), Supreme Court Decision 96Meu98 delivered on November 8, 1996 (Gong196Ha, 3576), Supreme Court Decision 97Meu155 delivered on May 16, 1997 (Gong197, 1735), Supreme Court Decision 98Meu15, 222 delivered on June 23, 1998 (Gong198, 2002)

Plaintiff

Defendant (Attorney Kim Jong-sik, Counsel for defendant-appellant)

Principal of the case

Daejeon High Court Decision 98Reu297 delivered on June 11, 1999

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

1. Summary of the reasoning of the judgment below

A. According to the reasoning of the lower judgment, the lower court acknowledged the following facts based on the evidence produced therefrom.

(1) After the plaintiff and the defendant completed the marriage report on December 31, 1969, on February 25, 1983, the agreement was married, but on April 9, 1984, the plaintiff and the defendant were legally married couple who again completed the marriage report, and between them, the non-party 1 (the birth of August 8, 1969) and the non-party 2 (the birth of January 25, 1971) and the principal of the case who is a father and wife of the family (the birth of August 21, 1985).

(2) Around 1968, the Plaintiff, who was enrolled in the music university of the Korea National University, was married as seen earlier by having graduated from the university of distinguished services at the Korea National University and had been in the second year from the university of distinguished services.

(3) The Defendant completed the reart course and completed the service for three years as the Air Force Military Officers after obtaining the qualification of a medical specialist, and was on duty at the Incheon Do Hospital and the Private Hospital in Incheon, and was on March 3, 1979, and was on duty to establish and operate a medical clinic in the Chungcheongnam-si.

(4) From around that time, the Plaintiff lived with the Defendant due to education problems, etc., and died far from the Defendant, and brought about a diversity with the Defendant on February 1980 due to reckless borrowing of money from the surrounding persons, etc., and the Plaintiff left home for a considerable period of time without being subject to the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation and the principle of no taxation.

(5) However, on April 9, 1984, the plaintiff and the defendant reported the marriage again and delivered the principal of the case on August 21, 1985, with the recommendation of family members and their neighbors.

(6) Around September 1983, the Defendant purchased a large scale of 274 square meters, etc. located in Chungcheong-si and constructed a new building on the ground, and continued to operate the said building in a place where it had been operated as a member of the above-mentioned outdoor department. On the other hand, the Plaintiff continued to reside in Seoul without almost residing in Chungcheong-si. On the other hand, around 190, the Defendant acquired a bath in Seoul at KRW 250,000,000 prepared by the Defendant, and operated it on its own account.

(7) Even after that, the Plaintiff was engaged in gambling and gambling. Since around 191, the Plaintiff borrowed money from others to raise funds for the operation of bathing houses, and, in the event that the Plaintiff either forged a certificate of loan or a promissory note in the name of the Defendant and fraudulently acquired money from others under the pretext of borrowing money from others, the Plaintiff provided the Nonparty’s reputation with the said hospital’s site and building as security and borrowed money without permission, from the first time to the extent delegated by the Defendant.

(8) On February 1992, the Plaintiff was released from the Republic of Korea on or around February 2, 1992. On July 30, 1993, the Plaintiff was charged with detention on or around January 27, 1993 and was released from the Seoul Criminal District Court upon conviction for eight months of imprisonment due to fraud, securities forgery, fabrication of private documents, and the crime of uttering.

(9) Meanwhile, the defendant filed a lawsuit against the above famous located in Daejeon High Court on April 4, 1995, seeking the cancellation of the registration of the establishment of a neighboring mortgage on the above hospital site and building, but even if the plaintiff borrowed money from the bonds company as collateral without the defendant's permission, it was ratified later by the defendant, so the defendant was sentenced to the payment of the borrowed money of KRW 250,00,000 and interest thereon. Accordingly, according to the judgment, the above famous area was paid KRW 324,476,00 to the above famous area, and there is any further difference between the plaintiff's payment by subrogation of the borrowed money.

(10) The Defendant assaulted the Plaintiff several times on the following: (a) the Plaintiff had engaged in money transactions by force; and (b) around November 1998, the Plaintiff was at the home of Nonparty 5, who was living in the court of the first instance, and was accused by the Plaintiff as a crime of adultery.

(11) The Defendant appeared on the date of the first instance trial and stated to the effect that he wishes to proceed to a divorce by paying a solatium of KRW 50,00,00 to the Plaintiff. On the fourth day of the first instance trial, the Plaintiff considered divorce with the Plaintiff, but, if the Plaintiff returned to the Defendant, he stated to the Defendant that he would continue to engage in a marital life by combining the judgment if he returned to the Defendant. On the date of the second instance trial, the Plaintiff again agreed to liquidate all of the monetary relations arising from divorce at KRW 50,00,000,000.

B. The judgment of the court below

The court below rejected the plaintiff's assertion as follows, i.e., that the plaintiff was extremely maltreated by the defendant, such as seeking money from the plaintiff at any time, and the defendant's punishment and siblings also provided unreasonable treatment to the plaintiff by taking bath or assault, etc. The defendant committed several unlawful acts with other women, such as the non-party 5, 6, and 7, and there is no evidence to acknowledge that the marriage relationship between the plaintiff and the defendant reached the bankruptcy of the plaintiff. Based on the above facts, the marriage relationship between the plaintiff and the defendant was caused to the extent that it would no longer be recovered in light of the circumstance of the marital life of the plaintiff and the defendant, the period of marriage, the defendant's opinion, etc., and the plaintiff's opinion that the plaintiff would not have any more interest in the marriage life at the 0th day without any proper control over the plaintiff's monetary relationship, and that the plaintiff's intention to divorce was not enough to accept the plaintiff's request for a divorce by taking advantage of the nature of the defendant's life or behavior suspected to divorce as well as the defendant's opinion.

2. Determination:

In principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of the failure. However, even though it is objectively evident that the other party has no intention to continue the marriage after the failure, the other party may exceptionally claim for divorce only in extenuating circumstances, such as where he/she does not comply with the divorce in misunderstanding or retaliation sentiment (see, e.g., Supreme Court Decisions 97Meu155, May 16, 1997; 98Meu15, 22, Jun. 23, 1998).

In this case, even if the failure of marriage between the plaintiff and the defendant was objectively obvious in the process of the failure of marriage between the plaintiff and the defendant, there is no reason to conclude that the defendant would not respond to the claim for divorce by the responsible spouse in a clerical error or retaliation, and even if the defendant stated that he would proceed to divorce upon the plaintiff's presentation at the date of investigation at the court of first instance and the date of mediation at the court below, such circumstance alone cannot be readily concluded that the defendant would not respond to the plaintiff's claim for divorce, which is a responsible spouse, in an objective mistake or retaliation, even though the defendant had no intention to marry. Furthermore, according to the records, after the plaintiff was released on September 2, 1993, the defendant was given due consideration to the plaintiff's residence with his child on the lease of the apartment house or apartment house in Seoul, and the plaintiff was separated from the defendant and his children on around 196, and thus, the plaintiff could not be viewed as having been treated separately by the plaintiff and the defendant on the condition that the plaintiff had no intention to marry.

Nevertheless, the court below erred by misapprehending the legal principles as to the right to claim a divorce by the responsible spouse, which is a responsible spouse, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below shall be reversed, and that part of 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 judges.

Justices Lee Yong-hun (Presiding Justice)