[1] The meaning of "when one has been extremely maltreated by his/her spouse," which is a ground for divorce under Article 840 subparagraph 3 of the Civil Code

[2] Meaning of and standard for determining “when there exists a serious cause making it difficult to continue the marriage,” which is a ground for divorce under Article 840 subparag. 6 of the Civil Act / Whether a divorce claim should be accepted in a case where the marital relationship between a husband and wife is deemed to have been broken down to the extent that the marital relationship between the husband and wife

[3] The case holding that the judgment below rejecting the claim for divorce by Gap on the ground that it constitutes a cause for judicial divorce under Article 840 subparagraph 3 or 6 of the Civil Code, in case where Gap is a legally married couple of the Vietnam citizen Gap and the citizen Eul, and Eul claimed divorce against Eul due to continuous assault by Eul, etc., the marriage was broken down due to Eul's continuous assault, etc., and in light of all the circumstances, Eul's act not only constitutes unfair treatment against Gap, but also constitutes an act of Eul's act, and since Eul's marital relationship with Eul is lost since it was impossible to recover due to Gap's loss of reliance and trust, it constitutes a cause for judicial divorce under Article 840 subparagraph 3 or 6 of the Civil Code

[1] The phrase “when one is extremely maltreated by his/her spouse” as a ground for divorce under Article 840 subparag. 3 of the Civil Act refers to the case where he/she was abused, abused, or insultd to the extent that force the continuation of the matrimonial relationship would be harsh.

[2] "When 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, means the case where the marital relationship corresponding to the essence of the marriage, which should be based on the difficulty and trust between the married couple, has been broken down to the extent that it is impossible to recover and compelling the continuation of the marital life, becomes an unfortunate pain for one spouse. In determining this, the existence of the intention to continue the marriage, the existence of the party's liability regarding the cause of the failure, the period of marital life, the existence of the party's age, the party's age, the party's age, the guarantee of livelihood after divorce, and other circumstances of the marital relationship, shall be taken into consideration. If it is deemed that the marital relationship between the married couple has been broken to the extent that it is impossible to take account of such circumstances, the plaintiff

[3] The case holding that the judgment below rejected the claim for divorce under Article 80 subparagraph 3 of the Civil Act or subparagraph 6 of Article 40 of the Act on Private International Law, in light of all the circumstances, including the following: (a) a Vietnam citizen Gap and a national Eul are legally married with the report of marriage; and (b) A claimed divorce against Eul due to a continuous assault by Eul, etc.; (c) since Eul has a habitual residence in the Republic of Korea, the governing law on divorce is the Civil Code of the Republic of Korea pursuant to the proviso of Article 39 of the Act on Private International Law; (d) Eul has repeatedly exercised violence against Gap; and (e) there are various circumstances concerning a marital relationship with Gap, including the party's intent to continue marriage; (e) the party's liability and seriousness as to the cause of failure; (e) the party's existence and degree of marital life; and (e) the party's age, etc., it appears that Gap and Eul can no longer be recovered from the abuse of Eul's domestic violence; and (e) Gap and Eul are held liable for judicial divorce.

[1] Article 840 subparag. 3 of the Civil Act / [2] Article 840 subparag. 6 of the Civil Act / [3] Article 840 subparag. 3 and 6 of the Civil Act

[1] Supreme Court Decision 97Meu612 decided Feb. 12, 1999 (Gong1999Sang, 661) / [2] Supreme Court Decision 90Meu1067 decided Jul. 9, 1991 (Gong1991, 2158) Supreme Court Decision 2010Meu1140 decided Jul. 15, 201 (Gong2010Ha, 1586)

Plaintiff (Attorney Ji-hun et al., Counsel for the plaintiff-appellant)

Defendant

Daegu Family Court Decision 2020Reu5976 decided October 8, 2020

The judgment below is reversed, and the case is remanded to the Daegu Family Court.

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. On October 2016, the Defendant, a national of the Republic of Korea, completed the marriage report of the Plaintiff, who is a national of Vietnam, or on August 17, 2017, and did not have a child among them.

B. On February 2018, the Defendant: (a) received text messages from the Plaintiff, and assaulted the Plaintiff at the time of the Plaintiff’s her clock.

C. On May 2018, the original Defendant frequently argued the Plaintiff’s employment and the Plaintiff’s frequent outing or outing outing time. On March 13, 2019, the Defendant assaulted the Plaintiff at the time on the ground that the Plaintiff was late returning home.

D. On March 14, 2019, the original Defendant submitted an application for divorce to the court on the filing of the application for divorce to the court on March 14, 2019. However, in the course of the instant dispute while the Defendant was not divorced, the Plaintiff’s head was at the time of the Plaintiff’s head and the head was walking with the Plaintiff’s engine and head, thereby causing the injury to the Plaintiff, and the kitchen knife in the kitchen and the kitchen knife in the kitchen were boomed in both hands, and threatened the Plaintiff. The Plaintiff did not return home and knife with the said assault.

E. On October 31, 2019, the Defendant was sentenced to a fine of KRW 5 million on the ground of assault as of March 13, 2019, Daegu District Court Decision 2019 High Court Decision 768, Mar. 14, 2019, and special intimidation as of March 14, 2019.

2. Lower judgment

While recognizing the Defendant’s violent exercise, the lower court rejected the Plaintiff’s claim for divorce on the grounds that it is difficult to readily conclude that the Plaintiff was extremely maltreated by the Defendant, or that the Plaintiff’s marital relationship with the original Defendant was no longer recovered.

A. After the Defendant’s assault on February 2018, the Defendant reconciliationd with the Plaintiff’s private village arbitration. On April 22, 2018, the Defendant raised marriage awareness.

B. Around May 2018, the Plaintiff was employed as a production worker and accumulated a friendly relationship with the same nationality’s work bonus, and the Plaintiff continued to have the time of returning home with the Defendant, which led to the conflict between the original Defendant and the Defendant.

C. Although the Plaintiff received a continuous point of view as to frequent outing time, time of returning home, or place of stay from the Defendant, the Plaintiff, as a husband and wife, did not endeavor to improve his or her behavior with a sense of responsibility for maintaining the matrimonial relationship, and caused conflicts by seeking a unilateral understanding of the Defendant or by responding to the request for divorce.

D. In light of these circumstances, the Defendant’s assault appears to have been caused by temporary and contingent appraisal during the marriage period, and thus, it is insufficient to recognize that the Plaintiff was subject to assault or abuse to the extent that it would be harsh to compel the Defendant to continue the marriage during the marriage period. In such a case, it is difficult to see the cause of the Defendant’s separate marriage, and the Defendant consistently expresses his intention not to want divorce with the Plaintiff from the time of departure to the time of the instant lawsuit. In light of the above, it is difficult to conclude that the relationship between the original Defendant and the Defendant has reached a failure to the extent that it would no longer be recovered.

3. Supreme Court Decision

However, the lower judgment is difficult to accept for the following reasons.

A. The phrase “when one has been extremely maltreated by his/her spouse” as a ground for divorce under Article 840 subparag. 3 of the Civil Act refers to cases where one has received violence, abuse, or insult to the extent that compelling the continuation of a matrimonial relationship would be harsh (see Supreme Court Decision 97Meu612 delivered on February 12, 199).

"When there is a serious reason for making it difficult to continue the marriage" as stipulated under Article 840 subparagraph 6 of the Civil Act means cases where a marital relationship corresponding to the essence of a marriage that should be based on difficulties and trust between the husband and wife has been broken down to the extent that it is impossible to restore the marital relationship and compelling the continuance of the marital life would result in an irrecoverable pain for one spouse. The determination shall take into account the existence of an intention to continue the marriage, the existence of a party’s liability regarding the cause of the failure, the period of marital life, the existence of a child, the party’s age, the party’s age, the guarantee of livelihood after the divorce, and other circumstances of the marital relationship, and if it is deemed that the marital relationship between the husband and the wife has been broken to the extent that it is impossible to take into account such circumstances, the plaintiff’s liability for the cause of the failure shall be accepted unless it is deemed that the defendant’s liability is greater than the defendant’s liability (see, e.g., Supreme Court Decisions 90Meu1067, Jul. 9, 2010).

B. Since the defendant has a habitual residence in the Republic of Korea as a national of the Republic of Korea, the law applicable to divorce pursuant to the proviso of Article 39 of the Private International Act is the Civil Code of

As seen earlier, the Defendant repeatedly exercised violence against the Plaintiff. In particular, at the time of the assault on March 14, 2019, the Defendant, while walking the Plaintiff’s ship and head with the kitchen knife and knife each on the two hand, knew of the fact that the Defendant made intimidation as if he would cause danger and injury to the Plaintiff’s life, and the degree of the use of the violence is heavy.

As to the Defendant’s violent exercise, the lower court seems to have judged that the Plaintiff’s continuous divorce was stimulated by demanding the Defendant rather than seeking to improve his or her behavior while continuously being pointed out by the Defendant. However, such circumstance alone cannot be deemed as a ground for rejecting the Plaintiff’s claim for divorce.

Rather, considering the circumstances such as the existence of the party's intention to continue marriage, the existence and seriousness of the party's responsibility for the cause of failure, the period of marital life, the existence of children, and the age of the party, the original defendant can no longer recover from the relationship before the use of violence by the defendant.

Considering these circumstances in light of the above legal principles, it is reasonable to view that the defendant's act not only constitutes unfair treatment against the plaintiff, but also the marital relationship between the original defendant was broken down to the extent that it is impossible to recover due to the loss of difficulties and trust that should be based on the defendant's violent exercise. This constitutes a cause for judicial divorce under Article 840 subparagraph 3 or 6 of the Civil Act.

Nevertheless, the lower court rejected the Plaintiff’s claim for divorce on the grounds that the Plaintiff was responsible for causing the Defendant’s violent exercise. In so doing, the lower court erred by misapprehending the legal doctrine on the grounds for divorce as prescribed by Articles 840 subparag. 3 and 6 of the Civil Act, thereby adversely affecting the conclusion of the judgment. The allegation

4. Conclusion

The Plaintiff’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on

Justices Lee Dong-won (Presiding Justice)