Article 828 of the Civil Code, the scope of the right to cancel a contract between husband and wife

The right to cancel a contract between husband and wife as stipulated in Article 828 of the Civil Act is being applied only when a formal marital relationship is in progress between the parties to the contract, and even when a formal marital relationship is in progress, if the marital relationship is in a situation where the substantial failure has occurred, it cannot be applied.

Article 828 of the Civil Act

Seoul High Court Decision 79Da1344 delivered on October 30, 1979 (No. 79Da1344 delivered on October 30, 197)

Plaintiff

Defendant

Busan District Court Decision 83 Gohap359

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant, on September 10, 1979, caused a transfer agreement with respect to the attached list 1, 2, and 3 real estate on September 10, 1979, implemented each procedure for the transfer registration of ownership based on a title trust agreement with respect to each of the 1/2 shares of 4 within the attached list 10 real estate on the same day.

Costs of lawsuit shall be borne by the defendant (the part of the claim for the registration of ownership transfer concerning shares of 1/2 of 4 through 10 real estate in the same list shall be excluded from the subject of the trial of the party because the plaintiff did not object to the judgment against the plaintiff in the first instance).

The part against the defendant in the original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

In full view of each statement of evidence Nos. 1-1, 2, 3, and 2-1, 1-1, 2-3, and 2 (the defendant's defense that was made by coercion, but no evidence exists to acknowledge it), and the whole purport of the oral argument in each statement of the court below witness Kim Jong-ro, Jeong-ro, Park Jong-chul, Park Byung-jin, and Park Jong-chul-chul (except for the part that is not believed after the above YI's testimony) without dispute over the establishment, the defendant is free from the plaintiff, on the ground that the plaintiff's wife's wife did not raise any son, and caused the plaintiff to live together with his family without seeing her son's family, and on September 10, 1979, the defendant cannot be found to have agreed on September 10, 1979 to transfer the defendant's attached list Nos. 1, 2, and 3-1, 193 of the court below's testimony.

The defendant asserts that the defendant's declaration of intention to transfer the above real estate was made by several coercions including the plaintiff, or by fraud, and that the delivery of the preparatory documents as of August 11, 1983 or the preparatory documents as of May 25, 1984 is cancelled. However, there is no evidence to prove that it was made by coercion or fraud, and the above assertion by the defendant is groundless.

In other words, the defendant's transfer agreement with respect to the above real estate is a contract between the couple and the defendant revoked it on September 8, 1984. Thus, Article 828 of the Civil Act, which provides for the right to cancel the contract between the plaintiff and the defendant, provides for the right to cancel the contract between the plaintiff and the parties to the contract, is applied only when the formal marital relationship between the parties to the contract continues, and even if the formal marital relationship continues in effect, if the marital relationship actually remains, it is not applicable if the actual marital relationship is in a situation where it actually goes bankrupt (see Supreme Court Decision 79Da1344 delivered on October 30, 1979). In light of the purport of the argument in the testimony of the above Kim Jong-ro, the defendant was living together with the plaintiff on September 8, 1979, as well as the defendant can be seen to have reached a marital relationship between the plaintiff and the defendant, and therefore, the defendant cannot be viewed to have cancelled the above provision without permission.

Therefore, the defendant is obligated to implement the transfer registration procedure based on the transfer agreement on September 10, 1979 with respect to the real estate 1, 2, and 3 of the same list to the plaintiff. Thus, the plaintiff's claim of this case seeking its implementation is justified, and the judgment of the court below is just, and the defendant's appeal is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition.

Judges Lee Dong-sung (Presiding Judge)