In a case where Gap was in a de facto marital relationship while living together with Eul on the premise of marriage with Eul, but Byung claimed consolation money due to the wrongful destruction of a de facto marital relationship between Eul and Eul on the ground that the de facto marital relationship between Gap and Eul was broken down, the case dismissing Gap's claim on the ground that it is difficult to view that Gap and Eul were in a de facto marital relationship with the substance of the substance of the marital life and the intention of marriage.

In a case where Gap was in a de facto marital relationship while living together with Eul on the premise of marriage, but Byung sought consolation money due to the wrongful reversal of a de facto marital relationship between Eul and Eul on the ground that the de facto marital relationship had ceased due to unlawful act, such as committing a de facto marital relationship with Eul, the case dismissing Gap's claim for consolation money on the ground that Gap and Eul continued to have a three-year educational relationship with Eul under the status of two legal spouses and continued to exist before their respective spouses divorce, and Eul knew that there was a legal spouse from the beginning, and Eul was aware of the fact that there was a legal spouse; Eul and Eul did not have a consciousness to indicate external marital relationship, such as a marriage, even after the divorce between their spouses, and there is no objective circumstance to recognize that Gap and Eul formed an economic community with the intent to engage in a marital life, it is difficult to view that Gap and Eul were consistent with the substance of a marital life and the intention of marriage corresponding to a de facto marital relationship with Eul, and furthermore, Byung cannot be deemed to have committed any unlawful act.

Articles 751 and 812 of the Civil Act

Plaintiff

Defendant (Law Firm Macro, Attorney Jeong Jong-sung, Counsel for defendant-appellant)

September 18, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay 100,000,000 won to the plaintiff as consolation money.

1. Facts of recognition;

A. The Plaintiff became aware of the Nonparty, who was a teaching professor at the English and master’s degree course at ○○ University, and was in school with the Nonparty since around December 2009. The Plaintiff was in a state where there was a spouse and child under the law at the time of the Plaintiff and Nonparty’s multi-party teaching system.

B. On February 2012, the Plaintiff sent text messages to the effect that, from that time to October 2013, when the Nonparty demanded the Plaintiff to hedge, the Plaintiff would die without maintaining the relationship with the Nonparty, or would know about the inappropriate relationship between the Plaintiff and the Nonparty to his/her family members, including his/her wife, etc. In the process, the Nonparty sent the Nonparty, on February 26, 2012, “The Nonparty divided the circumstances of the Plaintiff and his/her husband for two years from 2010 to 2012, and agreed to live together in the Plaintiff’s residence after one year,” and on May 11, 2013, the Plaintiff forced the Nonparty to prepare a letter of assault to the effect that “The Nonparty and the Plaintiff wish to marry to marry on May 19, 2014,” followed the conflict between the Plaintiff and the Nonparty on April 21, 2012 and the Nonparty on May 31, 2012.

C. Meanwhile, the Defendant was a graduate student who was enrolled in the English and master’s degree course at ○○ University in 2013, and the Nonparty was the Defendant’s leader. On April 2013, the Plaintiff began to doubt the relationship between the Nonparty and the Defendant.

D. From May 7, 2013 to May 11, 2013, the Plaintiff requested the Nonparty to communicate with other professors, teaching assistants, and faculty students. From around that time, the Nonparty continued to doubt the Nonparty and the Defendant, and requested the Nonparty and the Defendant to complete the relationship between the Nonparty and the Defendant by sending phone calls or text messages on several occasions, and the Defendant was punished for dispute. On July 2013, the Defendant filed a complaint with the police against the Plaintiff on suspicion of defamation, etc., and the Nonparty filed a complaint against the Nonparty under suspicion of intimidation, etc.

E. The Plaintiff was indicted of violation of the Punishment of Violences, etc. Act (Habitual Intimidation), coercion, injury, violation of the Protection of Communications Secrets Act, violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (Defamation) based on the statement of false facts against the Defendant due to the act as described in the above B and D (hereinafter referred to as the above), and the court convicted the Defendant of all the above crimes on September 17, 2014, and sentenced the Plaintiff to a suspended sentence of two years, probation, and a community service order of 120 hours for one year of imprisonment, and one year of suspension of qualification, and one year of suspension of qualification to the Plaintiff. The Prosecutor and the Plaintiff appealed from both the Plaintiff and the Plaintiff, and continue the appellate trial (Korean Government District Court Decision 2014No2192).

F. Meanwhile, the Plaintiff and the Nonparty met each other’s residence during the teaching period, and had sexual intercourses with each other during the teaching period, and also got overseas travel. The Nonparty was divorced from each other’s spouse around July 2012 by around September 2012.

[Reasons for Recognition] Gap's 1, 3, 8 through 12, 14, 16, 18 through 22 (including each number; hereinafter the same shall apply), Eul's 4 to 8, Gap's 7, 15, Eul's 1 to 3, and the purport of the whole pleadings, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

From 2010 to 2013, the Plaintiff was living in a de facto marital relationship under the premise of marriage with the Nonparty. However, during that period, the Defendant committed an unlawful act, such as committing a sexual intercourse with the Nonparty, and led to the failure of a de facto marital relationship between the Plaintiff and the Nonparty. As such, the Plaintiff suffered severe mental pain and economic loss due to the destruction of a de facto marital relationship between the Plaintiff and the Nonparty. Accordingly, the Defendant is obligated to pay the Plaintiff KRW 100,000 as consolation money.

B. Determination

(1) The term “ de facto marriage” refers to the combination between men and women not recognized as a legally married couple because the parties have an intention to marry and have a substantial marital life that is deemed to be a political party in society without reporting the formal marital life. Therefore, in order to obtain protection equivalent to a de facto marriage, it is insufficient solely for the circumstance that the parties have a simple marital relationship or a sporadic marital relationship in order to be legally married. There is a subjective agreement between the parties, and objectively, there is a substance of marital life that can be recognized as a marital life in terms of social order in terms of social norms. Here, the term “de facto marriage intention” refers to a intent to engage in a community life as a socially and practically as a couple, and a man and women have an intention to form an economic community and acquire rights and duties, i.e., acquisition of rights and duties. Furthermore, whether a marital life exists between the parties should be determined reasonably in accordance with the sound social justice and social order by comprehensively examining whether a living relationship exists between the parties, economic combination, mutual moral and social obligation, etc.

(2) In light of such legal principles, the Plaintiff and the Nonparty as seen earlier, on whether they were in a de facto marital relationship, and the fact that the Plaintiff and the Nonparty met with each other for several years. However, on the other hand, the following circumstances acknowledged by the evidence revealed as follows: (i) the Plaintiff and the Nonparty continued to have a three-year-year-old relationship before reaching a school system with their respective spouses and divorced; (ii) the Plaintiff and the Nonparty were aware of the existence of legal spouses from the beginning of two separate spouses; and (iii) the Plaintiff and the Nonparty did not have awareness of external marital relationship, such as marriage, even after they divorced with their spouses, and did not seem to have any objective circumstance to recognize that they formed an economic community with the intent to engage in a marital life; (iii) the Plaintiff, upon having telephone conversations with the Nonparty on February 27, 2012, demanded the Nonparty to keep a conflict between the Plaintiff and the Nonparty and the Nonparty’s family members at the same time with their own will to resolve the Plaintiff’s child issues, and thus, it is difficult to deem the relationship between the Nonparty and the Nonparty’s family members.

(3) Furthermore, the evidence submitted by the Plaintiff alone is insufficient to recognize the failure of a de facto marital relationship between the Plaintiff and the Nonparty due to the Defendant’s wrongful act or other Defendant’s mistake, and there is no other evidence to acknowledge it.

(4) Therefore, the Plaintiff’s claim cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.

Judges Cho Jae-hun (Presiding Judge) (Presiding Justice)