(a) The existence of a spouse who is mainly responsible for the failure of marriage and the existence of a claim for divorce by a responsible spouse, and exceptional cases where a claim for divorce is recognized;

(b) Whether a divorce claim is accepted by a responsible spouse who has been convicted of a crime of adultery;

A. In principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of such failure. However, in exceptional cases where special circumstances exist, such as where it is objectively apparent that the other party has no intention to continue the marriage after the failure, and it is objectively obvious that he/she has no intention to continue the marriage after the failure, but is not in response to a divorce in misunderstanding or retaliation sentiment

B. In order to file a complaint against a crime of adultery, there is a provision that a marriage shall be terminated first or a divorce lawsuit shall be instituted, and where a judgment of conviction is rendered because a complaint against a crime of adultery has not been revoked prior to the rendering of judgment in the first instance of the case of the complaint, the interpretation that a divorce claim by a responsible spouse should be accepted immediately, regardless of the intention of the accused spouse, so that a divorce claim by the responsible spouse may fall short of the marital life

Article 840 Subparag. 1, and Article 840 Subparag. 6 of the Civil Act

A. Supreme Court Decision 86Meu28 delivered on April 14, 1987 (Gong1987, 810) 92Meu778 delivered on February 12, 1993 (Gong1993Sang, 977) 92Meu90 delivered on March 9, 1993 (Gong193Sang, 1173)

Attorney Lee Jong-young, Counsel for plaintiff-appellant

Attorney Lee Dong-sung, Counsel for defendant-appellant

Daegu High Court Decision 90Reu720,737 decided March 27, 1991

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal No. 2 are examined.

According to the reasoning of the judgment of the court below, the court below, based on the evidence of this case, found that the respondent (the respondent shall be the appellant; hereinafter the same shall apply) and the claimant (the respondent shall be the appellant only) were living in Busan, and the respondent was married to Daegu on 1976, and the respondent was living together with the claimant and his consciousness, and caused one to his father, and that the defendant was living together with the non-claim and caused one of his wife. On 13 October 198, 198, the plaintiff filed a petition for the divorce and consolation money claim against the respondent, and filed a complaint against the respondent on December 27, 198, at the appellate court of the criminal case, for which the defendant was found guilty of a stay of execution for one year between imprisonment and six months, and the appellant shall not be held liable for the divorce of this case by changing the appellant's attitude between the plaintiff and the court of appeal, but shall not be held liable for the divorce of this case before the judgment of the court below, and shall not have agreed to the above claim for divorce of this case.

However, in principle, a spouse who is mainly responsible for the failure of the marital life may not file a divorce on the ground of such failure (see, e.g., Supreme Court Decision 80Meu60, May 11, 1982; 92Meu90, Mar. 9, 1993). However, it is clear that the other party has no intention to continue the marriage after the failure of the marriage, and in exceptional cases where there are special circumstances, such as where the other party does not respond to divorce in writing or retaliation sentiment, it is recognized as a party member's right to divorce (see, e.g., Supreme Court Decision 86Meu28, Apr. 14, 1987; 89Meu112, Sept. 25, 190; 89Meu10, Sept. 25, 1990).

Therefore, if the court below made a decision that the failure of the marital life of the couple of this case was mainly caused by the act of adultery between the appellees, the revocation of the petition for divorce is made: Provided, That the claimant is merely a means for inducing the respondent, and there are special circumstances to deem that the claimant does not have any intention to continue the marriage, and it is not possible to accept the petition for divorce of the respondent, who is the responsible spouse, solely on the ground that the respondent was convicted of the crime of adultery by the claimant's complaint. Nevertheless, the court below did not consider the existence of such special circumstances and accepted the petition for divorce by the responsible spouse. Accordingly, the court below did not err by misapprehending the legal principles on the claim for divorce by the responsible spouse.

The judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)