Whether a responsible spouse’s claim for divorce may be allowed with respect to the grounds for divorce under Article 840 subparag. 6 of the Civil Act (negative in principle)

[Majority Opinion] (A) Unlike the Republic of Korea, the legal system of divorce in many countries adopting the principle of no faulty regarding divorce only recognizes judicial divorce and does not recognize divorce by agreement. In Korea, even a responsible spouse is open to the way to divorce through consultation with the other spouse. This means that even a responsible spouse has the intention to divorce by admitting the other party with a strong mind and sufficient compensation, so it does not necessarily mean that there is an inevitable reason to introduce the principle of no fault even in the grounds for judicial divorce for the right to pursue happiness of the responsible spouse.

In Korea, there is no legal provision on the limitation and standard of the principle of no failure, and on the support of the other party after divorce. Therefore, if the divorce claim of the responsible spouse is widely accepted by taking the principle of no failure at the present stage where there is no legislative measure to protect the other party of the responsible spouse, there is a risk that the other party may unilaterally sacrifice for the happiness of the responsible spouse.

In the absence of permission for the divorce claim of the responsible spouse, there is the intention to prevent the divorce by the legal spouse who has been placed in the middle divorce relationship. However, in light of the fact that many countries have penal provisions for the middle divorce instead of the abolition of the middle divorce crime, the introduction of the principle of divorce without any measure is likely to result in the middle divorce prohibited by law.

Even if our society has greatly changed the values of family and marriage life and women's entry into the society has greatly increased, it is insufficient to view that gender equality has been realized in all areas of social economy, such as employment, wages, and raising of children, etc. In addition, even though the rate of divorce has rapidly increased in Korea and the awareness of divorce has changed significantly in Korea, it is true that the need for protection of marriage and family life has increased dynamicly, and there is a serious mental distress or difficulty in maintaining livelihood due to the claim for divorce by the responsible spouse.

(B) In full view of the above discussions, it is difficult to accept the argument that the Supreme Court’s precedent that does not allow the divorce claim of the responsible spouse as a matter of principle on the grounds for divorce under Article 840 subparag. 6 of the Civil Act is changing.

Inasmuch as permitting a divorce claim by a responsible spouse is contrary to the morality required by the marriage system and to prevent any consequences contrary to the good faith principle, in cases where the liability does not remain to the extent that the divorce claim should be rejected even in light of the ideal pursued by the marriage system and the good faith principle, such a spouse’s claim for divorce is not likely to disrupt marriage and family system, and is thus contrary to social morality and ethics.

Therefore, in a case where the other party’s spouse has no intention to continue the marriage and there is no concern about divorce or divorce by one’s will, as well as in a case where the other party’s spouse and his/her children have been protected and considered to offset the responsibilities of the other party’s spouse who requested divorce, the claim for divorce by the responsible spouse may be allowed exceptionally in a case where there are special circumstances where the responsibilities for the failure of the marital life are not maintained to the extent that the claim for divorce should be rejected, such as in a case where the liability of the responsible spouse for the failure of the marriage, which was significant at the time of the dissolution of marriage and the mental suffering suffered by the other party’s spouse, are gradually weakened as the degree of liability for both parties’ liability

In determining whether a claim for divorce by a responsible spouse may be exceptionally permitted, the following should be taken into account: the form and degree of liability of the responsible spouse; the assessment of the other spouse’s intention to continue marriage and the responsible spouse; the party’s age; the period of marital life and the specific living relationship after marriage; the period of separate life; the living relationship between husband and wife; whether various circumstances have been changed after the failure of marital life; whether the other spouse’s psychological, social, and economic conditions and the degree of livelihood security where divorce is recognized; the care, education, and welfare status for minor children; and other circumstances of marriage.

[Dissenting Opinion by Justice Min Il-young, Justice Kim Yong-deok, Justice Ko Young-han, Justice Kim Chang-suk, Justice Kim Shin, and Justice Kim So-young] (A) In full view of the social and economic perception of divorce, changes in the social and economic environment as well as changes in the legal system and practice of divorce, the need to limit the claim for judicial divorce by reason of divorce under Article 840 subparag. 6 of the Civil Act was significantly reduced solely on the ground that the claim for divorce

A spouse’s surviving spouse’s marital relationship is an important factor to be taken into consideration in determining whether the marital relationship has broken down and has reached an objective degree of recovery. However, in a case where it is deemed that the marital relationship has broken down to the extent that it is objectively impossible to recover even though such intent was taken into account, it is unreasonable to conclude that a divorce claim should not be denied, which only takes the subjective intent of the other spouse’s spouse, to resolve the marital relationship merely with the other spouse, is unreasonable, and it is also inconsistent with the purport of the judicial divorce system, which provides for the procedure for resolving the marital disputes

While the crime of adultery is a criminal sanction against the past adultery itself, divorce due to the dissolution of marriage is different from the purpose and legal effect of the system as a resolution of the future marriage legal relations due to the extinguishment of the substance of marriage. Thus, even if no criminal sanction against the responsible spouse does not exist, it is necessary to treat the marriage entity differently, apart from strengthening the liability for damages due to the act of adultery as a tort under civil law.

(B) Comprehensively taking account of the aforementioned various circumstances, it is difficult to view that uniformly rejecting a claim for divorce solely on the ground that the responsible spouse claims a divorce even though the marital failure and the other party refuses it as a way to resolve the conflict surrounding the divorce.

In principle, where a couple’s communal living relationship has been broken down to the extent that it is impossible to recover, it constitutes grounds for divorce under subparagraph 6, but where the other spouse who is not responsible for the failure due to divorce is seriously harsh mentally, socially, and economically, the divorce of the parent seriously undermines the rearing, education, and welfare of the child, such as where the parent intentionally has intentionally breached his/her duty of support and custody during the marriage period, division of property, such as hiding property, etc. in preparation for divorce, and where the other spouse has intentionally avoided the performance of consolation money and has put the other spouse into the difficult situation. If the other spouse claims a divorce of the liable spouse, it would be likely to punish the marriage and family system guaranteed by the Constitution if there are objective circumstances that significantly undermine the other spouse’s or child’s interests and significantly go against the concept of justice and equity. Thus, interpreting that there is a ground for divorce under subparagraph 6, limited to the absence of such objective circumstance, accords with the spirit of the Constitution guaranteeing marriage systematically.

In addition, even if a judicial divorce is permitted against a spouse who is not responsible for the dissolution of a marriage, it is necessary to fully reflect the responsibilities of the spouse responsible for resolving the marriage and to compensate for actual damage to the other spouse when determining the amount of consolation money for mental suffering caused by the failure of the marriage. In determining the ratio and amount of division of property, it is necessary to ensure that the other spouse is guaranteed to be able to be able to have a life that is not in the marriage even after the divorce by fully reflecting not only the liquidation of the property relationship created during the marriage but also the support factors, so that the other spouse may be guaranteed a life that is not in the marriage even after the divorce.

Articles 810, 816 subparag. 1, 826(1), 834, 840 of the Civil Act, Article 36(1) of the Constitution

Supreme Court Decision 65Meu37 delivered on September 21, 1965 (Gong13-2, 148 delivered on March 23, 197), Supreme Court Decision 71Meu41 delivered on April 14, 1987 (Gong1987, 8100), Supreme Court Decision 90Meu95 Delivered on April 27, 1990 (Gong190, 1164 delivered on July 9, 197), Supreme Court Decision 90Meu1067 Delivered on July 29, 197 (Gong1991, 2158 delivered on March 9, 197), Supreme Court Decision 92Meu90 Delivered on March 19, 193 (Gong1993, 197; Supreme Court Decision 92Meu97 delivered on March 19, 197).

Plaintiff (Attorney Lee Jae-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Park Jong-hwan et al., Counsel for the defendant-appellant)

Daegu Family Court Decision 2012Reu754 decided January 11, 2013

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

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

1. A. A. Marriage is a social position contract that forms the substance of a couple for the purpose of a single-living community, and its essence is a personal combination based on patriotism and trust (Article 826(1) of the Civil Act). Husband and wife has the duty to live together and support and cooperate with each other (see, e.g., Supreme Court Decision 9Meu612, Feb. 12, 1999). This is a request for the essence of marriage. In doing a marital life, husband and wife shall make best efforts to maintain a marital life by understanding and protecting the other party with patriotism, faith and personality. Even if there are many circumstances that may be obstacles to a marital life, they shall make every effort to overcome such obstacles, and shall not engage in any act causing a breakdown of a marital life on the grounds that there are circumstances that undermine the unity between husband and wife (see, e.g., Supreme Court Decision 97Meu612, Feb. 12, 199).

B. A marriage shall be annulled by divorce (Article 834 of the Civil Act). Husband and wife may file a claim for divorce with a family court where there exist grounds prescribed by law (Article 840 of the Civil Act). Article 840 of the Civil Act provides that, in addition to cases where the grounds for judicial divorce are specifically and individually enumerated in subparagraphs 1 through 5, “where there exists any other serious reason that makes it difficult to continue marriage” under subparagraph 6 (hereinafter “where there is any other serious reason that makes it difficult to continue marriage”) and the meaning of subparagraph 6 refers to cases where communal living relationship between husband and wife is broken down to the extent that it is impossible to recover the marital relationship corresponding to the essence of marriage, and enforcement of continuance of marital life becomes irrecoverable to one spouse (see, e.g., Supreme Court Decisions 90Meu1067, Jul. 9, 191; 2007Meu2947, Apr. 29, 2007). 207).

C. Examining the legislative cases in each country on the divorce system, where the grounds for divorce are apparent, such as where one spouse violates the obligations of marriage, such as living together, support, cooperation, and assistance, the so-called principle of liability that recognizes the right to claim judicial divorce only to the other party, and the so-called principle of failure that permits divorce on the grounds of failure, which is an objective circumstance where marriage cannot be continued, is the fact that the purpose of marriage cannot be achieved, i.e., the fact that the marriage cannot be achieved, e., the fact that the spouse is unable to continue.

Article 36 (1) of the Korean Constitution provides that “Marriage and family life shall be established and maintained on the basis of individual dignity and gender equality, and the State shall ensure that they are the same.” Thus, the dignity and gender equality of individuals shall be the guiding principle not only in the effect of marriage but also in the evaluation and judgment on the grounds for judicial divorce as well as in the effect of marriage. Therefore, in operating the judicial divorce system as provided in Article 840 of the Civil Act, the court shall closely review the dignity and gender equality of individuals, and then maintain the social and economic reality of the Republic of Korea, the universal moral sense of the people, and the legislative trends of each country, and then maintain the conflicting legal benefits and to prevent unnecessary confusion in legal life of the people.

2. A. The Supreme Court has interpreted that Article 840 of the Civil Act on the grounds of judicial divorce has been adopting the principle of due diligence in principle. Accordingly, even in a case where the grounds for divorce under Article 840 subparagraphs 1 through 5 of the Civil Act exist, in full view, the other spouse cannot file a claim for divorce for the reason of divorce in a case where the other spouse is mainly responsible for the other spouse rather than the spouse who has caused the grounds for divorce (see, e.g., Supreme Court Decisions 92Meu1078, Apr. 23, 1993; 95Meu37, Sept. 21, 1965; 71Meu41, Mar. 23, 197; 9Meu39, Apr. 29, 198; 209Meu94, Apr. 29, 197; 2000, Apr. 19, 209).

In addition, with respect to the reason for divorce under subparagraph 6, the Supreme Court held that recognition of the right to claim a judicial divorce against the spouse who has taken place without the intention of the spouse to divorce is fundamentally contrary to morality required by the marriage system and unreasonable result when divorce or divorce is reduced by the will of the other spouse despite the failure of marriage, and it does not purport to force the other spouse to continue the distressed marriage even if it is objectively evident that the other spouse does not have any intention to continue the marriage despite the failure of marriage. Thus, the other spouse does not comply with the claim for divorce only when the other spouse files a counterclaim for divorce or when the other spouse makes a clerical error or retaliational appraisal, but in reality, it is reasonable to accept the claim for divorce even if it is objectively evident, and it is reasonable to compel the spouse to continue the divorce until such a case, and it is also reasonable to continue the divorce from 197Meu297 to 197.297 to 1987.

B. As to the attitude of such Supreme Court precedents, the legislation cases of various countries, which have similar legislation in Korea, have already been changed from the due diligence to the due diligence, and if the marital common life relationship has been broken to the extent that it is impossible to recover significantly, marriage is merely the form of one piece, and even though it is inevitable to divorce, it is a responsible spouse who continues to maintain the marriage relationship. In the mid of the 1960s where there was no division of property and visitation right system under the Civil Act until the late 1980s where the precedents that rejected the claim for divorce of the responsible spouse were established, but the Civil Act was amended and the Civil Act has been granted, but the right to claim for division of property and visitation right has been equally guaranteed between men and women, as well as the right to raise children and women, and the social development of our society has been changed to the society where individuals are more important than their families, and women's social growth has increased, as well as the changes in the legislative rate after the 190s.

C. As the Supreme Court does not allow a divorce claim by a responsible spouse, filing a claim for divorce on the ground that the person who has caused the failure of marriage itself is against the good faith and trust. In addition, as the social and economic status of a woman is relatively poor than that of the male, if a divorce claim by a responsible spouse is widely permitted, it appears that the purpose of protecting a liable female spouse is to avoid a divorce claim by denying a divorce claim by a responsible male spouse, in particular, because the female spouse, who is not responsible for failure, suffers a big difficulty in living or supporting his/her children after divorce. From this perspective, if the Supreme Court modifies the interpretation of the previous law, it is necessary to closely review the overall legal system related to divorce and whether there is a significant change in the social and economic situation based on the previous Supreme Court precedents at the present point of time.

First, unlike the Republic of Korea, the divorce law of many countries adopting the principle of no fault in divorce only recognizes judicial divorce, but does not recognize divorce by agreement. In Korea, even if the responsible spouse is a responsible spouse, it is open to the way to effect divorce through consultation with the other spouse, and in fact, 7.7% of the total divorce as of 2014 falls under the status of divorce by agreement. This means that even a responsible spouse is able to divorce by taking advantage of the other party with a strong mind and sufficient compensation. Thus, it does not necessarily mean that there is an inevitable reason to introduce the principle of no fault even in the cause of judicial divorce for the pursuit of the right to pursue happiness of the responsible spouse.

Second, as the Civil Act was amended on January 13, 1990, it is true that the legal status of a divorced woman has been improved when a couple gets divorced by granting the party the right to claim division of property and the right to contact with the other party. However, even if the marital life has been broken down in a country taking the legislation of the principle of divorce, where maintaining the marital relationship for the benefit of a minor child is essential, or where it brings about a very harsh result to either party who does not consent to divorce, the so-called “a harsh provision” which does not allow divorce is stipulated in a specific and detailed manner. Furthermore, even in cases where the divorce is granted, the system that imposes liability to the other party after the divorce is adopted, such as the system of support after divorce, or the system of compensation benefits, is generally established. This is to prevent one-way sacrifice of the other party by unilaterally adopting the principle of divorce, while maintaining the other party’s right to claim division of property and the institutional system to protect the other party or children of the responsible spouse. Accordingly, it is not enough that the other party’s legal system can protect the other party’s right to divorce.

Third, there are various kinds of grounds for the responsibility of the responsible spouse, but the most realistic problem is a case where a de facto marital relationship is established with a person who is not a spouse. Korea prohibits double marriage (Article 810 of the Civil Act). In the event of a violation of this provision, a claim for annulment of marriage may be filed (Article 816 Subparag. 1 of the Civil Act), but there is no penal provision punishing such violation. In fact, as long as the adultery crime, which functions as the penal provision for double marriage, has been repealed by the Constitutional Court’s decision of unconstitutionality on February 26, 2015, there is no criminal punishment against double marriage. The Supreme Court precedent is intended to prevent double marriage by the legal spouse’s separation in the middle marital relationship. However, in light of the intent of preventing double marriage, in many countries, there is a penal provision for double marriage in lieu of the abolition of intermodal divorce.

Fourth, even if our society has greatly changed the values of family and marriage life, and women's entry into the society has significantly increased, it is insufficient to view that our society has realized gender equality in all areas of social economy, such as employment, wages, and raising of children. Moreover, even if the divorce rate has rapidly increased in Korea and the perception of the people on divorce has changed significantly, it can be said that the need for protection of marriage and family life has increased dynamicly, and even if it is true that there is a significant increase in the divorce rate in Korea, it can be said that the need for protection of marriage and family life has increased retroactively.

D. In full view of the above discussions, the argument that it is reasonable to change the previous Supreme Court precedents that do not allow in principle the claim for divorce by the responsible spouse regarding the grounds for divorce under subparagraph 6 is difficult to accept even considering the various arguments cited in the argument.

However, the Supreme Court's precedent does not allow a divorce claim of a responsible spouse is inconsistent with the morality required by the marriage system and prevents the result contrary to the principle of good faith. Thus, as long as the marriage system is pursued and in light of the principle of good faith, if the responsibility does not remain to the extent of rejecting the claim for divorce, the claim for divorce by the spouse is not likely to undermine the marriage and family system, and it does not go against the morality and ethics of the society. Therefore, it should be allowed.

Therefore, as already permitted in the Supreme Court precedents, in cases where there is no possibility of divorce or divorce by one’s will because the other spouse has no intention to continue the marriage, as well as where protection and consideration has been given to the other spouse and children to offset the responsibilities of the other spouse claiming divorce, the claim for divorce by the liable spouse may be exceptionally allowed in cases where there are special circumstances where the responsibilities for the failure of the marital life are not left to the extent of rejecting the claim for divorce, such as in a case where the responsibilities of the liable spouse who was remarkably responsible spouse at the time of the dissolution of marriage and the mental suffering of the other spouse has been deteriorated as at the time of the dissolution of marriage, and where the other spouse’s mental suffering has been gradually reduced as at the time of the third month, and where there is no degree of liability for the failure of marriage as at the time of the other spouse’s request for divorce, the attitude and degree of liability of the responsible spouse, the other spouse’s intention to continue the marriage and the spouse’s age to the other spouse, specific life and living relationship after marriage, specific period of marriage, mental and social situation of the other spouse.

3. According to the reasoning of the judgment below and the records of the judgment of the court of first instance as cited by the court below, ① the plaintiff and the defendant are legally married couple who completed the marriage report on March 9, 1976 and have three adult children among them; ② the plaintiff is living together with the non-party who left his house and gave birth to the plaintiff's father around January 200; ③ the defendant, upon the plaintiff's home and home, rears his three children on his own after the plaintiff's home; ④ the defendant has no occupation, and the defendant has maintained his livelihood with the amount of one million won per month which was paid by the plaintiff, and since January 2012, he did not receive living expenses from the plaintiff; ⑤ the defendant was aged over 63 years of age at the time of the closing of the argument in the court below, under the above cancer surgery, and the defendant has no good health, such as taking the drugs of the plaintiff, and expressed his intention to continue marriage with the plaintiff's arrival with a marriage relationship with the plaintiff.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff is the responsible spouse for failure of the marital life, and even considering the various circumstances of the marriage relationship, it is objectively clear that the Defendant does not have any intent to continue the marriage, but does not comply with the divorce in misunderstandings or retaliation sentiment, or does not constitute special circumstances where the Plaintiff’s liability does not remain to the extent of rejecting the claim for divorce. Thus, the Plaintiff cannot file a claim for divorce on the ground of failure.

In the same purport, the lower court’s measure of maintaining the first instance judgment dismissing the Plaintiff’s claim for divorce is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on grounds

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus are inappropriate to be invoked in this case.

4. 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, except for a dissenting opinion by Justice Min Il-young, Justice Kim Yong-deok, Justice Ko Young-han, Justice Kim Chang-suk, Justice Kim Shin, and Justice

5. Dissenting Opinion by Justice Min Il-young, Justice Kim Yong-deok, Justice Ko Young-han, Justice Kim Chang-suk, Justice Kim Shin, and Justice Kim So-young

A. If a couple’s communal living relationship has broken down to the point that it is impossible to recover, it refers to no longer a marital life means that the substance of the marriage is extinguished, and the substance of the marriage remains only in the form of a marriage. If the substance of the marriage as a couple’s communal living body scheduled by law is completely extinguished due to impossibility of restoring the marital life, it would be reasonable to confirm and adjust the legal relationship accordingly, as it would be a substantial divorce status. The recognition of a divorce for a couple’s communal living relationship in such a state is limited to confirming the absence of the substance of the currently extinguished marital relationship, and it should be noted that the substance of the marriage still remains, even if it is possible to recover the marital life, and that the marriage is not resolved by destroying the substance of the marriage.

Therefore, even though there exist various causes in the process of marriage until the marital life has reached the irrecoverable level of breakdown, and there exist both or one of the parties to the process. However, as long as the substance of marriage is extinguished as the marital life has reached the irrecoverable level of breakdown, the cause is no longer affected by the maintenance or recovery of the substance of marriage, and the cause is no longer a standard for determining the resolution of marriage. However, with respect to such cause, the other party’s liability corresponding thereto shall be imposed by sufficiently reflecting the damages suffered by the other party or matters necessary for protecting the other party’s property division, etc. due to divorce, and thereby protecting the other party’s spouse through such means.

Therefore, I cannot agree with the majority opinion that the claim for judicial divorce under subparagraph 6 should not be allowed solely on the ground that the cause of divorce under subparagraph 6 is the spouse who is the spouse responsible for the failure of the irrecoverable state, and that the previous Supreme Court precedents to the same effect as the majority opinion should be modified.

Then, the Dissenting Opinion specifically presents the grounds for the validity of the Dissenting Opinion.

B. A marriage is established when a person who reaches the marriage age reaches an agreement on marriage and files a report of marriage (Article 807, Article 812(1), and Article 815 subparag. 1 of the Civil Act). Marriage is a community physically, physically, physically, and economically combined for the purpose of living a single-born life on the basis of difficulties in marriage, and has a duty to live together and support and cooperate with each other (Article 826(1) of the Civil Act). Article 36(1) of the Constitution provides that “Marriage and family life shall be established and maintained on the basis of the dignity and gender equality of individuals, and the State shall guarantee this.” Upon the formation of marriage, a couple shall comprehensively cooperate with one another in order to maintain a common life as a couple by understanding and protecting the other, and even if there are many circumstances facing marriage during the marriage life, the couple shall make best efforts to overcome these problems through consultation with each other (Article 826(1)4 of the Civil Act). However, where divorce is no longer possible under the Civil Act.

Divorce by agreement shall take effect by reporting by confirmation of the intention of divorce from the family court, and there is no limit to the grounds for divorce. Therefore, divorce shall be allowed if the true agreement of divorce is reached between husband and wife.

On the other hand, a judicial divorce shall be permitted in cases where there are grounds for judicial divorce stipulated in Article 840 of the Civil Act, and one spouse may file a judicial divorce with the family court without the other party’s consent. The purpose of the judicial divorce system is to separately establish the judicial divorce system, taking into account the existence of inevitable circumstances where marriage is terminated even if the couple did not agree with the intention of divorce, the objective reasons for judicial divorce shall be determined by law within the extent that does not deviate from the purpose of systematic guarantee of marriage recognized by the Constitution, and the divorce shall be permitted when the judgment of the family court recognizes that

Accordingly, Article 840 of the Civil Act lists individual reasons under subparagraphs 1 through 6 as the grounds for divorce for which judicial divorce can be claimed. Among them, the grounds under subparagraphs 1 through 5 specifically stipulate the grounds for divorce, bad faith, extremely unfair treatment, or for which the other party’s life or death is unknown for not less than three years, and all of them are responsible to the other party to the claim for divorce. However, the grounds for divorce under subparagraph 6 stipulate abstract and generally, “when there is any other serious reason which makes it difficult to continue the marriage.”

C. Until now, the Supreme Court has interpreted that the “where there exists any other serious reason that makes it difficult to continue marriage”, which is a reason for divorce under subparagraph 6, refers to the case where a couple’s communal living relationship, corresponding to the essence of marriage, has been broken down to the extent that it is impossible to recover, and compelling one’s spouse to continue the marital life, constitutes an irrecoverable pain (see Supreme Court Decision 90Meu1067, supra)

A marriage is a foundation for realizing human dignity and value and pursuing happiness, as well as for forming a socially organized chain family, which is the most fundamental foundation in a social life, and thus, it is desirable to maintain a once established marital relationship. However, in a case where a couple’s communal life is no longer nonexistent due to a prolonged separation of the couple, etc., and where it comes to the extent that it is objectively impossible to recover, the substance of a marriage, the essence of which is the marital community as a mentally, physically, and economically combined community, shall be deemed extinguished. Legally, marriage is not resolved only if it is not resolved, and it is not possible to look at the state before the failure of marital relationship, and it cannot be expected that the family formed on the basis of the marriage will not perform the function of an organization realizing the dignity and value of the couple’s and their children.

In addition, as a couple whose marriage has been maintained solely on the external basis and whose relationship of conflict and conflict continues for a long time, negative impacts on the personality formation and emotional sentiments of his/her children are likely to be affected, and the bad faith sentiment of each other on the couple’s children is left as they are, and thus, may cause the failure of parents and children’s relationship to the other spouse.

Nevertheless, if an external marital relationship remains in existence, it is necessary to demand both spouse to perform the duty of living with the spouse who is actually unable to perform his/her duties, and it is unreasonable and compelling the other spouse to continue the marital life may cause an unfortunate pain for one spouse. Thus, in such a case, it shall be deemed that there is a serious reason for making it difficult to continue the marriage, which is a reason for divorce No. 6.

As such, it is the basis for whether the marital relationship between the couple and the couple is broken down to the extent that it is impossible to recover and compelling the continuation of the marital life constitutes the grounds for divorce under subparagraph 6. Thus, it is necessary to carefully determine the extent of the failure, the existence of intention to continue the marriage, the party’s liability for the cause of the failure, the period of marital life, the existence and custody of the child, the party’s age, the party’s livelihood security after divorce, and other marital relations (see, e.g., Supreme Court Decision 87Meu24, Jul. 21, 1987). In addition, it is necessary to carefully determine in light of the purport of the Civil Act to protect the marital and family life and the constitutional spirit to guarantee the marital system

D. (1) Meanwhile, the Supreme Court has interpreted that a divorce claim by a responsible spouse may be accepted in special circumstances, such as (i) where the failure is deemed to have occurred to the extent that the marital relationship between the couple is impossible to take place as above; (ii) where the failure is caused entirely or mainly by a cause attributable to the spouse claiming the divorce; or where the liability of the spouse claiming the divorce is deemed to exceed the liability of the other spouse, and (iii) where the other party claiming the divorce is deemed to have no intention to continue the marriage after the failure, and (iv) where the other party claiming the divorce is objectively obvious that it is objectively obvious that he/she has no intention to continue the marriage after the failure, but only is unable to respond to the divorce on the surface from a clerical or retaliation appraisal (see, e.g., Supreme Court Decisions 65Meu37, supra; 86Meu28, supra; 9

(2) As can be seen, the Supreme Court’s limitation on the right to claim a divorce by the responsible spouse, which is mainly responsible for the failure of a marriage, to recognize the right to claim a judicial divorce against a person who has intentionally destroyed the marriage relationship, by allowing the person who has intentionally reversed the marriage relationship to have the right to claim a divorce, and thus, may be an unreasonable result in the violation of morality required by the marriage system and the divorce or divorce by the spouse’s will (see, e.g., Supreme Court Decisions 71Meu41, supra; 86Meu28, supra).

In addition, in addition to the social atmosphere that considers the divorce as a single path, the purpose of protecting the female spouse, who is the socially and economically weak, was to protect the female spouse, by taking into account the circumstances where it is not easy for the spouse who has been divorced without any cause to become economically independent or engage in social activities after divorce, and the circumstances where it is not sufficient to place any disadvantage in division of property, support and parenting in the divorce process, and the situation where it is not sufficient to protect the female spouse, who is the socially and economically weak.

(3) However, as a result of not permitting a judicial divorce on the ground that it is the claim for divorce by a principal responsible spouse, the reason attributable to the other party has become more neglected in the divorce proceedings, which led to the other party’s reliance on the conflict and conflict arising in the course of married life, both spouses in the divorce proceedings will be punished by taking advantage of the conflict and conflict between the other party. In addition, the other party’s criticism and bad faith in the marriage proceedings, and the other party’s marital relationship will be more hostile and the examination of the divorce proceedings will lead to the past mistake, it has been relatively neglected in seeking a reasonable solution regarding the resolution of conflict in the divorce proceedings, the other party’s life after divorce, and the bringing-up and welfare of his children, etc.

In addition, it is difficult to deny that the substance of a marriage, the essence of which is a couple’s community life, has been objectively extinguished if the marital relationship has already been extinguished to the extent that it is impossible to recover, as seen earlier, even though a spouse who has filed a claim for a judicial divorce, is generally unable to confirm that his/her responsibility is only one of the parties. Furthermore, as recognized by the Majority Opinion, as long as the marital relationship has been extinguished to the extent that it is impossible to recover, the principal liability of the spouse responsible for the failure may also be undermined. As the Majority Opinion recognizes, legal and social significance on the prolonged continuation of the failure or other various circumstances, which significantly reduces the severity of liability, and it may also be difficult or inappropriate to make a conclusive judgment on the severity of liability of both parties (see Supreme Court Decision 200Meu2130, supra).

(4) In addition, due to rapid economic growth and social change as well as rapid divorce, and the increase in divorce by agreement, there have been significant changes in values that make it possible to divorce to pursue the quality of life. As women’s social development active, there have been a growing number of social and economic circumstances regarding women’s self-reliance after divorce, including the increase in the number of women to have economic ability not to live as men. Furthermore, the Civil Act, amended by Act No. 4199 on January 13, 1990, effective on January 1, 1991, included the scope of the right to claim for property division among the parties to divorce at least 80 cases such as the right to claim for property division and the right to claim for property division among the parties to divorce at least 20 cases such as the right to claim for property division and the right to claim for property division among the parties to divorce at least 80 cases such as the right to claim for property division and the right to claim for property division at least 80 cases regarding the right to claim for property division among the parties to divorce.

In full view of the social and economic perception of divorce, changes in the social and economic environment as well as changes in the legal system and practice of divorce, the need to restrict the judicial divorce by reason of the reason of divorce No. 6 is considerably decreased, such as the previous Supreme Court precedents, and rather, the reasonable criteria for determining divorce by reason of divorce No. 6 have to be newly established, reflecting these circumstances.

(5) A spouse’s surviving spouse’s marital relationship is an important factor to be taken into account in determining whether a marital relationship has been broken down and has reached an objective degree of irrecoverable recovery. However, in a case where the marital relationship is deemed to have been broken down to the extent that it is objectively irrecoverable even though such intent was taken into account, it is unreasonable to conclude that a divorce claim for resolving a marital relationship, which is only a form of the other spouse’s subjective intent, should not be denied. In other words, it does not coincide with the purport of a judicial divorce system that provides for the procedure for resolving a marriage when an agreement is not reached. In light of the foregoing, the Majority Opinion is unreasonable to the effect that in a case of a divorce by agreement, even if a divorce by agreement is permitted, judicial divorce, which serves as a substitute function, need not

(6) Meanwhile, as the Constitutional Court rendered a decision of unconstitutionality on the provision punishing a crime of adultery, the act of adultery was no longer punished. However, the crime of adultery is a criminal sanction against the past adultery itself, while divorce due to the dissolution of the future marital relationship following the extinguishment of the substance of marriage differs from the purpose and legal effect of the system, and thus, even if there is no criminal sanction against the two-way spouse, there is no need to treat the legal relationship whose substance of marriage is extinguished differently. Furthermore, the issue of whether to grant a divorce claim should be determined in a way that harmonizes the interests of the couple, children, etc. who are parties to the marriage, by taking into account the provisions of law and the purpose, purport, function, etc. of the marriage and divorce system, and it is not a means for responding to or achieving any retaliation against the crime by forcing the two-way spouse to continue a marital relationship only with the other party to the marriage.

(7) Comprehensively taking account of the aforementioned various circumstances, it is difficult to view that uniformly rejecting the claim for divorce solely on the ground that the responsible spouse claims a divorce even though the marital failure and the other party refuses it as a way to resolve the conflict surrounding the divorce.

E. Therefore, as social conditions, such as a big change in the people’s awareness of divorce, and the legal and institutional supplementation has been considerably made, in a case where a divorce is requested due to the failure of the marriage relationship and the substantial extinguishment of the substance thereof, the denial or absence of the divorce cannot be left to the intention of the parties on the ground of the claim for divorce by the responsible spouse, and whether the substance of the marriage is extinguished or not, and whether the marriage relationship needs to be protected and maintained, a reasonable judgment based on objective circumstances should be sought to harmonize the purpose and purpose of the two systems, namely, marriage and divorce, which may conflict with one another.

As seen earlier, Article 36(1) of the Constitution provides that marriage and family life shall be established and maintained on the basis of individual dignity and gender equality, and that marriage shall be systematically guaranteed. As such, the grounds for judicial divorce under the Civil Act shall be construed and applied to the extent that it does not deviate from individual dignity and gender equality, and from the intent of the institutional guarantee of marriage.

Even if the marital community relationship between husband and wife has been broken down to the extent that it is impossible to recover, there is no difference before and after the failure, that it is necessary to realize individual dignity and gender equality between husband and wife and to protect the right to pursue happiness and the right to a decent life for both husband and wife. In marriage, the duty to live together as a marital living body is a basic element, but it is important to support the spouse and raise their children, and it is necessary to protect the spouse, who is not responsible for the failure of marital relationship, to protect

In light of these circumstances, in principle, where a marital relationship between a spouse and a spouse has been broken down to the extent that it is impossible to recover, it constitutes grounds for divorce as stipulated under subparagraph 6 in principle, but where the other spouse who is not responsible for the failure due to divorce is in a very harsh mental, social, and economic state, the divorce of the parent seriously undermines the child’s parenting, education, and welfare, such as where the parent intentionally lacks the duty of support and custody for a long time during the marriage period, where the spouse intentionally lacks the duty of support and custody, and where the other spouse intentionally evades the performance of the liability property in preparation for divorce, and where the other spouse is placed in a difficult situation by intentionally avoiding the performance of the liability property, it is consistent with the spirit of the Constitution guaranteeing marriage as stipulated under subparagraph 6.

In addition, even if a judicial divorce is permitted against a spouse who is not responsible for the dissolution of a marriage, it is necessary to fully reflect the responsibilities of the spouse responsible for resolving the marriage and to compensate the other spouse for actual damage by determining the amount of consolation money for mental suffering caused by the failure of the marriage. In determining the ratio and amount of division of property, it is necessary to ensure that the other spouse is guaranteed a livelihood that is not in the marriage even after the divorce, by sufficiently reflecting not only the liquidation of the property relationship created during the marriage but also the support factors, so that the other spouse may be guaranteed a life that is not in the marriage even after the divorce.

Meanwhile, in order to recognize a claim for divorce by a responsible spouse, the Majority Opinion deems it necessary to have an institutional complementary device, such as so-called “cruel provision,” as in another country. However, such interpretation as to the grounds for divorce under subparagraph 6 includes the circumstances that take into account as so-called “cruel provision” in another country. As such, the spirit of the Constitution guaranteeing the marriage system and the system under the Civil Act, which has been revised up to now, can sufficiently protect the other party’s spouse, etc. through such interpretation and the operation of the trial, and thus, there is no need to prior to legal and institutional supplementation.

F. In conclusion, we cannot agree with the majority opinion that the claim for divorce under subparagraph 6 may be rejected on the ground that the spouse is the spouse who is mainly responsible for the failure of marriage in a case where the marital relationship between husband and wife is broken down to the extent that it is impossible to recover and compelling the continuation of the marital life becomes an irrecoverable pain for one spouse. The previous Supreme Court precedents cited by the majority opinion should be modified to the extent that they are inconsistent with this opinion.

If the substance of a marriage has ceased to exist and has reached a state of appearance as it is impossible to recover, it is necessary to demand payment, consideration, etc. from the responsible spouse to protect the other party’s spouse, even if there is a need to devise appropriate measures to ensure that such payment, consideration, etc. will continue to exist even after the marriage is terminated, and it is not necessary to deny the resolution of the marriage itself just because it is a claim for divorce by the responsible spouse.

G. According to the reasoning of the lower judgment and the reasoning of the first instance judgment as cited by the lower court, the lower court determined that the Plaintiff’s claim for divorce, which is the responsible spouse, cannot be accepted on the premise that the spouse, who is mainly responsible for the failure of a matrimonial relationship, cannot file a claim for divorce on the ground that the failure

However, according to the legal principles as seen earlier, the claim for divorce shall not be rejected solely on the ground that the responsible spouse’s claim for divorce is filed, and whether the marital relationship between the plaintiff and the defendant is broken down to the extent that it is impossible to recover, and the continuation of the marital life may cause pain to the plaintiff. In the event that such failure has occurred, the court shall first examine whether it is objectively recognized that it does not seriously harm the interests of the defendant and his/her children who are not mainly responsible for the failure due to the divorce of this case, and that it does not go against the concept of justice and equity, and determine whether it falls under the grounds for divorce

According to the reasoning of the judgment of the court below and the records of the court of first instance cited by the court below, ① the plaintiff and the defendant are legally married couple, but for whom a considerable period of time has elapsed since January 200, and ② the plaintiff provided the main cause of the dissolution of marriage, such as the birth of a woman outside of marriage, etc., but the defendant did not make any effort to recover the marital relationship after a considerable period of time has elapsed since the commencement of his separation, and there is no record of the circumstances in which the plaintiff participated in the events of plaintiff's home, such as life saving or religious services, etc., or exchanged with the plaintiff's relatives. ③ The plaintiff paid the school expenses for children born between the plaintiff and the defendant even during his separation, and the defendant paid the amount of KRW 1 million monthly living expenses to the defendant until the time when the lawsuit of this case was filed. ④ The plaintiff was registered as the disabled of Grade 2 due to the lack of sufficient health due to the merger, such as the plaintiff's birth of the non-party and the non-party's birth relationship with his child.

In light of the process of marriage life and the circumstances leading up to the failure of the marriage, the marriage relationship between the plaintiff and the defendant is no longer recoverable and forced to continue the marriage life, and there is an objective reason to view that the divorce of this case does not go against the concept of justice and balance.

In addition, according to the majority opinion, it is more meaningful to strictly consider the severity of the responsibility of both the plaintiff and the defendant with the lapse of the March, etc., and to deem that the plaintiff's liability does not remain to the extent that the plaintiff's claim for divorce should be rejected. Thus, such circumstances need to be resolved through a trial by the fact-finding court.

In particular, in this case, although a de facto marriage is in a de facto marital relationship, parents need to take into account that there is a minor father in need of fostering. A family has the function of protecting the community life of a child rather than merely a couple’s community. As such, the welfare of a child need to be first considered in determining the maintenance or resolution of marriage, and the welfare of a child may be realized on the basis of a living relationship currently formed and substantially formed. Although the substance of a de facto marital relationship cannot be protected more than a legal marriage, it is necessary to take into account so that a legal relationship suitable for such substance can be formed for the welfare of a child born in a de facto marital relationship even for the welfare of a child born in a de facto marital relationship. Even if the substance of a marriage is extinguished and unable to recover, it is reasonable to reasonably consider the legal relationship so that it does not adversely affect the normal growth of a minor child or contribute to the welfare of a minor, or that it does not harm the welfare of a minor by maintaining the external form due to conflict or conflict between the couple.

Nevertheless, the court below did not properly examine the above circumstances and dismissed the plaintiff's claim only for the reasons indicated in its holding. This judgment below erred by misapprehending the legal principles on the grounds for divorce No. 6 and the claim for judicial divorce by the responsible spouse, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Therefore, the judgment below shall be reversed.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Justices Yang Sung-tae (Presiding Justice)