(영문) 부산가정법원 2020.3.18.선고 2019르122 판결

In the first place, the marriage reported between the Plaintiff and the Defendant to the head of the Busan Metropolitan City on April 13, 2018 is confirmed to be null and void. Preliminaryly, the marriage reported to the head of the Busan Metropolitan City on April 13, 2018 between the Plaintiff and the Defendant shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Determination on this safety defense

A. The Plaintiff asserts to the effect that, since the Defendant was aware of the fact that the instant lawsuit was pending from around 2018, the Defendant’s subsequent appeal is unlawful.

B. Subsequent completion of procedural acts under Article 173(1) of the Civil Procedure Act may be possible where the parties are unable to comply with the peremptory period due to a cause not attributable to them. Here, “reasons not attributable to them” refers to cases where the parties are unable to comply with such period despite their due care to conduct such procedural acts (see, e.g., Supreme Court Decision 2015Da21322, Aug. 13, 2015). If a copy of the complaint and the text of the ruling were to be served by public notice, without negligence, by means of serving the defendant. In such a case, the defendant is unable to comply with the peremptory period due to a cause not attributable to him, and thus, the defendant may complete subsequent completion of appeal within 2 weeks from the date on which the said cause ceases to exist. Here, “the date on which the grounds cease to exist” refers to the date on which the parties or legal representatives were to have known of the facts delivered by public notice, and it shall be deemed that the plaintiff was to have received the original copy of the judgment by public notice, 190.

According to the above facts of recognition, the defendant was unaware of the fact that the judgment of the court of first instance was delivered by service by public notice without negligence, and the date on which such reason ceases to exist to exist to the defendant shall be deemed that the defendant was issued an original copy of the judgment of the court of first instance, not on September 2, 2019, but on September 5, 2019 when the original copy of the judgment of the court of first instance was issued by the defendant ( even according to the circumstances alleged by the plaintiff and the evidence submitted by the plaintiff, it is difficult to view that the defendant was previously sentenced to the judgment of the court of first instance and that the defendant was aware of the fact that the judgment was delivered by public notice by public notice) and within two weeks thereafter, the appeal

D. Therefore, the plaintiff's above principal safety defense is without merit.

2. Judgment as to the main claim

(a) Applicable law;

According to Article 36(1) of the Private International Act, since the law of nationality of each party to a marriage is the governing law with respect to the substantive requirements for the establishment of marriage, the governing law of this case is the Civil Act of the Republic of Korea with respect to the plaintiff and the law of marriage in Vietnam with respect to the defendant. However, since data on the law of marriage in Vietnam was not submitted to this court and there was no other known method, the Civil Act of the Republic of Korea shall be applied as the law of suspension.

(b) Fact of recognition;

1) The plaintiff is a male of Korean nationality, and the defendant is a female of Korean nationality.

2) 원고와 피고는 2018.3.29. ◇에서 혼인신고를 마쳤고, 원고는 2018.4.13. 부산광역시 ○구청장에게 혼인증서를 제출하여 혼인신고를 마쳤다.

3) The Defendant entered the Republic of Korea on July 2, 2018, and around August 2018, issued a foreigner registration certificate from the Busan Immigration Office, and withdrawn on August 11, 2018.

4) There was no marital relationship between the Plaintiff and the Defendant due to the Defendant’s refusal to leave the Republic of Korea until the Defendant entered the Republic of Korea.

[Ground of recognition] Each entry of Gap evidence 1, 2, 5, 7, 8, Gap evidence 9-1 to 4, and the purport of the whole pleadings

C. Determination

Article 815 subparag. 1 of the Civil Act refers to a case where there is no agreement between the parties to enter into a marriage on the grounds of nullity of marriage between the parties, which means the case where there is no agreement between the parties to make a mental or physical combination which is deemed to be a couple under the social concept of the parties. As such, there is an effective intent to establish a marital relationship only between the parties, and the other party lacks such intent. If there is an intention to establish a family relationship between the parties as a couple under the law on the marriage report itself, even if there was an agreement between the parties on the marriage report itself, such marriage shall be deemed null and void because

In light of the following facts established earlier, Gap evidence 11-1-1, Eul evidence 10-1, Eul evidence 10-1, and Eul evidence 10-2's video and oral arguments, the defendant entered the Republic of Korea and sent out only about one month after leaving the Republic of Korea. After leaving the SNS in the defendant's name, the defendant's SNS contains four statements, "I do not live in the house with no time of life", "I do not expect to be out of the family", "I do not have a male and is money." After entering the Republic of Korea, the defendant did not have any evidence to acknowledge that the plaintiff was unfairly treated to the defendant to the extent that the plaintiff was treated to the extent that the plaintiff would go out of the Republic of Korea only one month after leaving the Republic of Korea, and there is no intention to establish a marital relationship between the plaintiff and the plaintiff, and the defendant made a temporary appearance of the plaintiff and the defendant for the purpose of marriage without a genuine intention to enter Korea.

Therefore, inasmuch as there is no agreement between the Plaintiff and the Defendant on marital intent, marriage reported between the Plaintiff and the Defendant to the head of Busan Metropolitan City ○○○ on April 13, 2018 is null and void pursuant to Article 815 subparag. 1 of the Civil Act (as long as the Plaintiff’s primary claim is accepted, the conjunctive claim is not determined separately).

3. Conclusion

The plaintiff's primary claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed on the grounds of its merit.