[1] The validity of a marriage in a case where one of the parties has the intent to establish a marital relationship with which he/she is present only to one of the parties, and the other party lacks such intent (=negative)

[2] The case holding that, in a case where it is reasonable to deem that a foreigner Eul entered Korea without the intention of establishing a marital relationship with a foreigner Eul and entered Korea as a means to find employment, the marriage is null and void pursuant to Article 815 subparagraph 1 of the Civil Code, since there exists no agreement between the intention of marriage between Gap and Eul

[1] Article 815 subparag. 1 of the Civil Act provides that "when there is no agreement between the parties on marriage" means the case where there is no agreement between the parties to create a mental or physical combination which is recognized as a couple under a social concept. Thus, if only one of the parties has the intent to establish a marital relationship, and the other party lacks such intent, the marriage shall be deemed null and void, even if there was an agreement between the parties to establish a marital relationship with the other party on the marital report itself, even if there was an intention to establish a family relationship as a couple under the law of one-way marriage.

[2] The case holding that, in a case where it is reasonable to deem that a foreigner Eul entered Korea without the intention of establishing a marital relationship with a foreigner Eul and entered Korea only with a view to finding employment, even if Eul continued to engage in a marital life for one month after Eul entered Korea, it is deemed that Eul temporarily created the appearance of a marital life for the purpose of achieving the above other purpose without a genuine intention of marriage, and thus, the marriage between Gap and Eul is null and void pursuant to Article 815 subparagraph 1 of the Civil Act, since the agreement between the intention of marriage is not reached between Gap and Eul

[1] Article 815 subparag. 1 of the Civil Act / [2] Article 815 subparag. 1 of the Civil Act

Plaintiff

Defendant

Seoul Family Court Decision 2009Reu2577 Decided December 18, 2009

The judgment below is reversed, and the case is remanded to the Seoul Family Court Panel Division.

We examine the grounds of appeal.

1. Article 815 subparag. 1 of the Civil Act provides that “when there is no agreement between the parties to a marriage,” the term “when there is no agreement between the parties to a marriage” means the case where there is no agreement between the parties to make a mental or physical combination recognized as a couple under a social concept. Thus, if only one of the parties has the intent to establish a marital relationship, and the other party lacks such intent, the marriage should be deemed null and void even if there was an intention to establish a status relationship between the parties as a husband and wife under the Civil Act due to the agreement between the parties on the marriage report itself.

2. The court below rejected the Plaintiff’s claim for marriage invalidation under Article 81 of the Civil Act, based on the following facts: (a) the Plaintiff, a Korean national, married on August 26, 2008 with the Defendant of the Republic of Korea’s nationality, and completed the marriage report in Korea on September 19, 2008; (b) the Defendant, upon entering Korea on November 1, 2008 and commencing the marriage with the Plaintiff on December 4, 2008; (c) the Defendant left Korea without any awareness until now; (d) the Defendant, at the time of leaving Korea, left Korea to the effect that “the Plaintiff was married to support his family members and must pay money in Korea”; and (e) the Defendant, while living together with the Plaintiff and his normal couple during one month before leaving Korea, had been traveling to Jeju-do; and (e) the Defendant, even if leaving Korea, it was difficult to deem the Defendant’s claim for marriage invalidation under Article 15 of the Civil Act to have been claimed for the marriage invalidation of the Plaintiff and the Defendant.

3. However, we cannot accept the judgment of the court below for the following reasons.

According to the facts and records acknowledged by the court below, the plaintiff was carefully considered while respecting the defendant's intentions so that the defendant can adapt well to his life in Korea. Nevertheless, at the time of his entry, the defendant left the country only one month in which the defendant entered Korea and left the contact with him. At the time of his departure, the defendant shows that "at the time of his departure, the plaintiff must work to support his family, they are married with the plaintiff, and they are legally able to work in Korea and audit the plaintiff." In fact, the defendant was able to obtain a foreigner registration certificate as a spouse of the citizen of the Republic of Korea before her departure, and the defendant's private village, which was residing in Korea and exchanged with the defendant, submitted a written statement that "the defendant seems to have been trying to pay money to his family in the Republic of Korea," and it seems probable that the plaintiff did not have a marital relationship with the defendant, and that the defendant should have engaged in religious activities in the Republic of Korea at the time of his entry, and that it did not appear to have been high enough.

In light of the above circumstances, it is reasonable to deem that the Defendant did not intend to establish a marital relationship between the Plaintiff and the Plaintiff, but only entered Korea and entered Korea to find employment. Even if the Defendant had continued to engage in a marital life with the Plaintiff for one month after entering Korea, it seems that the Defendant created temporarily the appearance of a marital life to achieve the above other purpose without a genuine intention, and thus it is difficult to change its judgment. Thus, the marriage between the Plaintiff and the Defendant is null and void pursuant to Article 815 subparag. 1 of the Civil Act, as it is not consistent with the intention of marriage.

Nevertheless, the lower court determined otherwise and rejected the Plaintiff’s claim seeking confirmation of nullity of the marriage. In so doing, it erred by violating the rules of evidence or by misapprehending the legal doctrine on the grounds for nullity of marriage under Article 815 subparag. 1 of the Civil Act, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)