[1] The applicable law to determine whether the marriage is substantially effective in a case where a male or female of the Republic of Korea is married by the Chinese method in China (Korean law)

[2] The meaning of "when there is no agreement on marriage between the parties" under Article 815 subparagraph 1 of the Civil Code, and the validity of marriage as a means to achieve another purpose (negative)

[3] The case holding that in a case where a marriage report was made in the form for the purpose of entry for domestic employment of the women of the ship of the Chinese history without the intention of establishing a marital relationship, the crime of false entry in the original copy of

[1] According to the proviso of Article 15 (1) of the Conflict of Laws in our country, the method of marriage shall be governed by the law of the place of marriage. However, the main text of Article 15 (1) of the same Act provides that the requirements for establishment of marriage shall be determined by the law of the domicile of each party, and Article 16 (1) of the same Act provides that "the effect of marriage shall be determined by the law of the law of the father of the father of the father". Thus, even if the marriage between a male and a female of the Republic of Korea was established by China in China, even if it was established by China, it shall be determined by the law of our country as its home country.

[2] Article 815 subparagraph 1 of the Civil Code of the Republic of Korea provides that the marriage shall be null and void in the case of "when there is no agreement between the parties to enter into a marriage". Since the grounds for nullity of marriage refer to the case where the parties do not have an intention to create a mental or physical combination which is recognized as a husband and wife under the social concept, even though the parties are deemed to have an intention to establish a family relationship as a husband and wife under the law due to the agreement between the parties on the marriage and the withdrawal of marriage itself, it is merely a means to achieve other purposes, and if there is no intention to establish a marital relationship between them, the marriage shall be interpreted as null and void in accordance with Article 815 subparagraph 1 of the Civil Code.

[3] The case holding that, in case where the defendants were to marry in form for the purpose of enabling their entry into the Republic of Korea for their domestic employment without the intention of establishing a marital relationship with the women of Chinese nationality, since the defendants and the women of the ship's nationality did not have the agreement on the entry into the marriage but did not have the intent of establishing the marital relationship, the defendants' marriage did not take effect as it did not meet the actual requirements for establishment of the marital relationship under the laws of our country, since the defendants' marriage did not take effect as it did not meet the requirements for establishment of a marital relationship, even if the defendants reported marriage without validity in accordance with the laws of our country, in case where the defendants made a report of marriage without its validity in accordance with the law of our country.

[1] Articles 15(1) and 16(1) of the Conflict of Laws Act, Article 812 of the Civil Act / [2] Article 815 of the Civil Act / [3] Article 228(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 94Meu413 delivered on June 28, 1994 (Gong1994Ha, 2105) / [2] Supreme Court Decision 76Do107 delivered on September 14, 1976 (Gong1976, 9356), Supreme Court Decision 85Do1481 delivered on September 10, 1985 (Gong1985, 1376), Supreme Court Decision 93Meu171 delivered on June 11, 1993 (Gong193Ha, 2021)

Defendant 1 and one other

Prosecutor

Seoul District Court Decision 96No3403 delivered on July 12, 1996

The judgment below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the summary of the facts charged in this case and the judgment of the court below are as follows.

A. The summary of the facts charged of this case is as follows: Defendant 1, in collusion with Co-defendant 1 and Nonindicted 1 of the first instance trial on October 25, 1995, promised to make the above non-indicted 1, who is a woman of the Chinese Joseon Dynasty, a woman of the first instance trial, to enter the above non-indicted 1 in Korea with the introduction of the co-defendant 1 of the above non-indicted 1 of the first instance trial in order to allow him to enter the above non-indicted 1 to be employed in Korea on the first instance trial on the first day of the first instance trial in order to make the above non-indicted 1 enter the above marriage at around that time, attaching the above pictures and the above pictures, and received the above marriage certificate at the notarial Office No. 5th of the same month, and had the above public official in charge of the above non-indicted 1 of the above defendant's permanent domicile at the office of the first instance trial on November 25 of the same year, and had him enter the above facts in the above notarial register with the above non-indicted 1 of the first instance.

B. On the grounds delineated below, the lower court reversed the first instance judgment convicting the Defendants ex officio, and sentenced the Defendants not guilty.

Although the defendants, without the intention to establish a marital relationship with the non-indicted 1, who is the non-indicted 1, a female of Chinese nationality, but only decided in the form of marriage for the purpose of enabling the above non-indicted 1 to enter into the Republic of Korea employment, the defendant 1 and the non-indicted 1, and the non-indicted 2, in accordance with the agreement of their intention to enter into the legal marital relationship between each other at the time of marriage, China shall make a registration of marriage in China (Article 7 of the Chinese Marriage Act provides that both parties who intend to enter into the marriage shall enter into the directly marital registry office and shall make a registration of marriage. When the marriage is in accordance with the provisions of this Act, the marriage registration shall be issued after the registration is made, and the marital relation shall be established upon the acquisition of the certificate of marriage, and the defendants filed a report of marriage in their respective permanent domiciles. Accordingly, it shall be considered whether the report of false content was made, and whether it constitutes the crime of entering the original of a notarial deed in an authentic or non-notarial deed.

In accordance with the proviso of Article 15(1) of the Conflict of Laws, which provides that the method of marriage shall be governed by the law of the place of marriage, the report of marriage at each of the parties' permanent domiciles is not a creative report, but a report of marriage already established in China (in accordance with Articles 40 and 130 of the Family Register Act, the head of a diplomatic mission abroad or the head of a Si/Eup/Myeon having jurisdiction over the country shall send a certificate of marriage within one month by the method of the country where the marriage is committed in accordance with Article 40 and Article 130 of the Family Register Act, to the head of a diplomatic mission abroad or the head of a Si/Eup/Myeon having jurisdiction over the country, and shall be subject to a fine for negligence if he neglects it; hereinafter the same shall also apply). Each report of marriage is made in accordance with the above facts, even if the parties have not been reported in accordance with the provisions of the Family Register Act, and even if the parties have been under the legislation of our country taking strict form of a notarial deed which does not have the legal intent to report of marriage itself.

In interpreting the intent to engage in an act of marriage, it is difficult to readily conclude that the marriage under the report of marriage is null and void in a case where the parties initially entered a disguised marriage for another purpose, but they live together thereafter with the substance of the marriage. It is difficult to conclude that the marriage is null and void in a case where the parties initially entered a false marriage for the purpose of marriage, and that it is difficult for them to find their children to live together with their own disease after the death, so long-term treatment and care has no choice but to look at their own disease, and it is difficult for them to interpret that the marriage should be null and void in a case where the parties made a report of marriage with their children for the purpose of inheritance to inherit their own property to the nursing person. Furthermore, it is questionable whether it is reasonable to interpret that the above report of marriage should be made with a false report of marriage as an unlawful statement in the original text of a notarial deed in light of social and economic circumstances, and that it is reasonable to interpret that it is reasonable to interpret the concept of marriage under the Immigration Control Act as an evasion of the existing law in light of the concept of marriage.

2. As to the ground of appeal

According to the proviso of Article 15 (1) of the Conflict of Laws in our country, the method of marriage is subject to the law of the place of marriage. However, the main text of Article 15 (1) of the same Act stipulates that the requirements for establishment of marriage shall be determined by the law of the country with respect to each party, and Article 16 (1) of the same Act provides that "the effect of marriage shall be determined by the law of the law of the father of the father". Thus, even if the marriage in this case was established by the Chinese method, even if it was established by the Chinese method, it shall be determined by the law of the country of the father of the defendants, who are the father of the case, whether it is valid or not.

However, Article 815 subparagraph 1 of the Civil Code of the Republic of Korea provides that "if there is no agreement on marriage between the parties, the marriage shall be null and void." Since the reason for nullity of marriage refers to the case where the parties have no intention to create a mental or physical combination which is recognized as a couple under the social concept, it shall be interpreted that the marriage is null and void in accordance with Article 815 subparagraph 1 of the Civil Code. Thus, even if it is recognized that the parties have an intention to establish a family relationship, which is a couple under the law of the opposite marriage, due to the agreement between the parties on the marriage itself, it is merely a means to achieve other purposes, and if there is no intention to establish a marital relationship between them, the marriage shall be interpreted as null and void in accordance with Article 815 subparagraph 1 of the Civil Code (see Supreme Court Decision 85Do1481, Sept. 10, 1985).

In addition, Article 812 (1) of the Civil Act shall take effect by filing a declaration of marriage in accordance with the provisions of the Family Register Act. Article 813 of the Family Register Act shall provide that the marriage shall be reported to the head of the competent family court; Article 807 (Marriage Order), Article 809 (Prohibition of Marriage, etc.); Article 811 (2) and Article 812 (2) of the Family Register Act shall be accepted if the parties concerned are not in violation of the provisions of the aforesaid Act; Article 76 (1) of the Family Register Act shall provide that the report of marriage shall take effect by entering the name and address of the parties concerned; Article 87 (1) of the Family Register Act; Article 97 (1) of the Family Register Act shall take effect by reporting the fact that there is no agreement between the parties concerned on divorce; Article 97 (3) of the Family Court Act shall take effect by reporting the fact that there is no such agreement between the parties concerned on divorce; and Article 86 (2) of the Family Court shall take effect by reporting on divorce.

As stated in the facts charged in this case, if the defendants were to marry in the form for the purpose of enabling the above non-indicteds to enter the Republic of Korea for employment with the above non-indicteds without their intent to establish a marital relationship with the ship of Chinese nationality, it is recognized that the defendants and the above non-indicteds did not have the intent to enter the Republic of Korea for employment, but they did not have the intent to establish a marital relationship with the defendant, so the defendants did not have the effect of establishing a marital relationship. Thus, the defendants' marriage does not have the effect of establishing a marital relationship with the law of our country. Therefore, even if the defendants reported a marriage without validity in light of the law of our country, as long as the defendants reported a marriage without validity in accordance with the Chinese method, the acts of the defendants as stated in the facts charged cannot avoid the liability for the crime of false entry in the original copy of authentic deed and its exercise

Nevertheless, the judgment of the court below that acquitted all of the facts charged in this case on the ground that the above marriage is valid is clearly affected by the misunderstanding of the legal principles as to the grounds for nullity of marriage under Article 815 of the Civil Act, and therefore, the part of the grounds for appeal

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the Seoul District Court which is the original court for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)