In a case where Gap's mother and Eul's mother filed a divorce report with Gap even though Gap died before the period of appeal for divorce was expired formally, and later Gap's mother and Eul filed a divorce report with Eul, but the divorce report was not accepted on the ground that Gap's family relation register was closed due to Gap's death, the case holding that the head of the competent Gu's failure to accept Gap's mother's divorce report on the ground that Gap's family relation register was lawfully closed due to Gap'

In a case where Gap's mother and Eul filed a divorce report with Gap even though Gap died before the period of appeal for divorce was expired, but Gap's mother and Eul filed a divorce report, but Gap's divorce report was not accepted on the ground that the family relation register was closed due to Gap's death, the case holding that it is lawful to accept Gap's mother's divorce report on the ground that Gap's mother and Eul died before the expiration of the period of appeal for divorce judgment, since the claim for divorce by judicial divorce is a right of the couple's life and the family relation register was not accepted, the heir cannot take over the litigation procedure if one of the married couple died during the divorce lawsuit, and in such a case, there is no special provision that the prosecutor can take over the litigation procedure. Thus, the divorce lawsuit is terminated at the same time as the claimant dies, and the declaration of termination of the lawsuit at the appellate court after the judgment of the court below is finalized as a matter of course due to Gap's death and the litigation procedure is terminated before the expiration of the period of appeal for divorce judgment.

Article 233(1) of the Civil Procedure Act

Applicant (Law Firm Damp, Attorneys Kimdo-le et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government

Seoul Family Court Order 2017Noz. 1135 dated August 10, 2017

1. The appeal of this case is dismissed.

2. Of the decision of the first instance, the indication of the respondent in the party indication column shall be corrected from the Seocho-gu Seoul Metropolitan Government Office to the "head of Seocho-gu Seoul Metropolitan Government Office".

The decision of the first instance court shall be revoked. The respondent shall accept a divorce report between the applicant and non-applicant 1 on April 12, 2017.

1. Basic facts

According to the records of this case, the non-applicant 1 and non-applicant 2 filed a marriage report around March 21, 2016, and the divorce lawsuit between them (Seoul Family Court 2016ddan23666, 2016ddan3438 (Counterclaim))) was concluded on November 30, 2016, and the divorce judgment on December 14, 2016 (hereinafter “instant divorce judgment”) was declared. The instant divorce judgment became final and conclusive on January 27, 2017, and the period of appeal of the instant divorce judgment and the period of appeal of the instant divorce judgment and the period of January 20, 2017, the non-applicant 1 died, and the non-applicant 1’s mother her mother 1 filed a divorce report and filed a divorce report with the respondent on April 12, 2017 (hereinafter “non-party 1 and the instant divorce report”).

2. Applicant's assertion

Inasmuch as the instant divorce judgment was final and conclusive without filing an appeal and no separate declaration of termination of the lawsuit was made, the marriage relationship ought to be deemed to be terminated retroactively on November 30, 2016, which is the date of closing the argument. Therefore, the instant divorce declaration ought to be accepted.

3. Determination

A. Since the right to claim a judicial divorce is the right under the binding force of the husband and wife, the heir cannot take over the litigation procedures in the event one side of the husband and wife dies while the divorce lawsuit is pending, and in such a case there is no special provision by which the prosecutor can take over them. Thus, the divorce lawsuit is naturally terminated at the same time as the claimant dies (Supreme Court Decision 85Meu27 delivered on September 10, 1985). The declaration of termination of the lawsuit at the appellate court rendered after the pronouncement of the judgment of the court below is merely a judgment confirming that the effect of the judgment of the court below previously declared has been lost due to the death of the party concerned and the litigation procedure has been completed. In addition, the final judgment accepting the claim for a judicial divorce has the effect of terminating

B. In light of the above legal principles, as seen earlier, the divorce lawsuit between the non-applicant 1 and the non-applicant 2 is naturally terminated and the divorce judgment of this case is also final and conclusive as a result of the death of the non-applicant 1 prior to the expiration of the appeal period of the divorce judgment of this case. Thus, it is lawful that the respondent did not accept the applicant's report of divorce on the ground that the family relation register was lawfully closed due to the death of the non-applicant 1. Thus, the applicant's assertion is without merit

4. Conclusion

Therefore, the application of this case is dismissed as it is without merit, and the decision of the court of first instance is just with this conclusion, and the appeal of this case shall be dismissed, but the respondent of the party indication column in the decision of first instance shall be corrected from Seocho-gu Seoul Metropolitan Government Office to the Seocho-gu Seoul Metropolitan Government Office as the head of Seocho-gu Seoul Metropolitan Government Office, and it shall be

Judge Lee Do-hee (Presiding Judge)