[1] Whether to report the marriage with the deceased

[2] Whether there is a benefit of confirmation in the claim for confirmation of existence of de facto marital relationship with the deceased

[1] Marriage cannot be recognized between a deceased person or between a deceased person and a deceased person, and such marriage report shall not be accepted unless there are special provisions that exceptionally recognize the retroactive effect of the marriage report, such as the Act on Special Cases Concerning Marriage Report.

[2] In a case where one of the parties to a de facto marriage dies, it cannot be said that there is a benefit in a lawsuit seeking confirmation of the existence of a de facto marriage relationship with the deceased for the purpose of reporting the marriage. In a case where such a de facto marriage relationship in the past is the premise of the present or potential dispute between the parties to a de facto marriage and the deceased and a third party, the benefit in confirmation can be recognized if the claim for confirmation of its existence can be a valid and appropriate means to resolve these many disputes. However, if it cannot be deemed as an appropriate means, the benefit in confirmation should be denied.

[1] Articles 812 and 813 of the Civil Act, Article 76-2 of the Family Register Act / [2] Article 228 of the Civil Procedure Act, Article 2(1)1 of the Family Litigation Act

[1] Supreme Court Decision 87Meu104 delivered on April 12, 198 (Gong1988, 846) (Gong1991, 2716) dated August 13, 1991 / [2] Supreme Court Decision 78Meu7 delivered on July 11, 1978 (Gong1978, 1105), Supreme Court Decision 94Meu1447 delivered on March 28, 1995 (Gong195, 1751)

Plaintiff (Attorney Lee Byung-he et al., Counsel for the plaintiff-appellant)

Prosecutor

Seoul High Court Decision 95Reu252 delivered on June 8, 1995

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

We examine the grounds of appeal.

In our legal system, marriage cannot be acknowledged between a deceased person or between a surviving person and a deceased person, and such marriage report cannot be accepted unless there are special provisions that exceptionally recognize the retroactive effect of the marriage report, such as the Act on Special Cases Concerning Marriage Report (see Supreme Court Order 91S6, Aug. 13, 1991). Therefore, in a case where a spouse of a de facto marriage dies, there is no benefit in legal action to seek confirmation of the existence of a de facto marital relationship with the deceased person for the purpose of reporting the marriage if the surviving party dies.

In addition, in a case where a de facto marital relationship in the past is the premise of the present or potential dispute between the person who lives in a de facto marital relationship and the deceased and a third party, the benefit of confirmation can be recognized if it can be an appropriate means to resolve these many disputes in a single way (see Supreme Court Decision 94Meu1447 delivered on March 28, 1995), but if it cannot be deemed an appropriate means, the benefit of confirmation should be denied.

According to the judgment of the court below, in this case where a Japanese female plaintiff seeks confirmation of the existence of a de facto marriage between two persons from August 1964 to October 27, 1993, which existed between the death of the non-party deceased, the court below rejected the plaintiff's assertion that it is necessary to confirm the existence of a de facto marriage relationship in order to report the marriage between the plaintiff and the above deceased. The court below determined that the plaintiff's assertion that it is necessary to confirm the existence of a de facto marriage relationship with the deceased under the premise that the property acquired in the deceased during the period of de facto marriage is co-ownership with the plaintiff may claim and prove the co-ownership of such property within the litigation procedure that would lead to the assertion of a co-ownership relationship with the deceased in the future. In addition, in this case, the lawsuit seeking confirmation of the existence of a de facto marriage relationship cannot be an appropriate means to resolve the dispute, rather than repeating the procedure seeking confirmation individually on the legal relations arising from the premise of a de facto marriage relationship in the past.

The judgment of the court below is just in accordance with the opinion of party members as mentioned above, and there is no error of law such as misapprehension of legal principles as the theory of lawsuit.

There is no reason to discuss this issue.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)