[1] The meaning of "illegal act by a spouse" under Article 840 subparagraph 1 of the Civil Code

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

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

[1] Supreme Court Decision 88Meu7 decided May 24, 198 (Gong1988, 992) Supreme Court Decision 92Meu68 decided Nov. 10, 1992 (Gong1993Sang, 112) / [2] Supreme Court Decision 2009Meu84 decided Dec. 9, 2010 (Gong2011Sang, 124)

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Ko Hyun-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Reu365 decided October 20, 2010

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

The grounds of appeal are examined (to the extent of supplement for supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. The "illegal act of a spouse" under Article 840 subparagraph 1 of the Civil Act is a broad concept, including adulterys, and includes any unlawful act that does not reach the liver, but does not follow the marital duty (see, e.g., Supreme Court Decision 88Meu7, May 24, 198). Whether it is an unlawful act should be evaluated in consideration of the degree and situation according to each specific case (see, e.g., Supreme Court Decision 92Meu68, Nov. 10, 1992).

B. In light of the above legal principles and records, the court below acknowledged facts as stated in its judgment, and judged that the plaintiff committed an unlawful act that is not faithful to the marital duty of the married couple, and the plaintiff's unlawful act and the act of provisional withdrawal around March 19, 2006 led to the failure of a marital relationship between the plaintiff and the defendant. The defendant's unlawful act, assault and insult and the overall neglect against the plaintiff as asserted by the plaintiff cannot be recognized, or that the plaintiff's act cannot be seen as having caused the failure of a marital relationship between the plaintiff and the defendant due to such defendant's act. There is no error of law by misunderstanding facts beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misunderstanding the legal principles on the responsible spouse, which affected the conclusion of the judgment

2. As to the grounds of appeal Nos. 2 and 3

A. 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 though it is objectively apparent that the other party has no intention to continue the marriage after the failure, the other party is exceptionally entitled to the claim for divorce by the responsible spouse only if there are special circumstances, such as the failure to comply with the divorce in misunderstandings or retaliation sentiment (see Supreme Court Decision 2009Meu844, Dec. 9, 2010, etc.).

B. In light of the above legal principles and records, the court below acknowledged facts as stated in its judgment, and judged that the plaintiff's main liability is the plaintiff even if the marital relationship between the plaintiff and the defendant has reached the failure, and that there is no reason to believe that the defendant does not comply with the divorce in misunderstanding or retaliation appraisal even though it is objectively obvious that the defendant has no intention to continue the marriage, and rejected the plaintiff's claim for divorce of this case. The Supreme Court Decision 2009Meu2130 Decided December 24, 2009 as to the cause of divorce under Article 840 subparagraph 6 of the Civil Code stated in the ground of appeal is different from this case, and it is not appropriate to be invoked in this case. Thus, the court below erred by misapprehending the legal principles as to the cause of divorce under Article 840 subparagraph 6 of the Civil Code or by misapprehending the legal principles as alleged in the ground of appeal.

3. Conclusion

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 Lee Sang-hoon (Presiding Justice)