[1] Whether a party may seek the return of expenses, etc. or the amount equivalent thereto, paid by either party for a married life, such as marriage, or seek compensation for damages, in addition to the claim for division of property against his/her spouse (negative in principle)

[2] In a case where an effective marriage agreement has been reached and a marriage has been completed and a legal marriage has been established, whether it is possible to readily deny the substance and process the legal relationship corresponding to the failure to marry (negative)

[1] Articles 806 and 843 of the Civil Act / [2] Article 812 of the Civil Act

[1] Supreme Court Decision 84Meu77 delivered on September 25, 1984 (Gong1984, 1726) Supreme Court Decision 98Meu1827 delivered on February 24, 1999

Plaintiff (Law Firm E and A, Attorneys Go-sung et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2013Reu2214, 2221, 2238 decided November 21, 2013

The part of the lower judgment against the Defendant (Counterclaim) and the part against the Defendant regarding the claim for consolation money and restitution of the principal lawsuit against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

The grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) (hereinafter “Defendant”) are also examined (to the extent of supplement in case of each of the Plaintiff and the Defendant’s briefs filed after the lapse of the period for submitting the grounds of appeal).

1. As to the ground of appeal on the principal claim and restitution claim

A. As long as a marriage has been established and continued, unless there is a special circumstance where it is recognized that it was impossible to recognize that the married life has been in a meaningful marital life as a marital community, and that there was no intention to continue the marriage from the beginning, thereby causing the strike of the marriage, in light of the good faith principle or the principle of equity, etc., it is not possible for a party to seek a return of expenses or things, etc. paid for the married life, such as marriage, or a claim for damages equivalent thereto, in addition to the claim for division of property against the spouse (see, e.g., Supreme Court Decisions 84Meu77, Sept. 25, 1984; 98Meu1827, Feb. 24, 199). Furthermore, if an agreement was made under the Korean legal system adopting the legal divorce system and the marriage report was concluded and the marriage was not established, the relationship between the living together, support, and dissolution as a marital community is formed, and the marriage is resolved easily in accordance with the marriage procedure prescribed by the Civil Act.

B. However, according to the reasoning of the judgment of the first instance as cited by the lower court and the evidence duly admitted, the Plaintiff and the Defendant were only associates with the introduction of marriage immigrants around June 2009, and reported marriage on May 17, 2010. On September 12, 201 of the same year, the Plaintiff and the Defendant came to contact with the Defendant as a couple for more than one year from September 201 until November 201.

According to these factual relations, it cannot be deemed that the marriage of the Plaintiff and the Defendant cannot be deemed to have been resolved within a short period to the extent that it is difficult to deem that the marriage of the Plaintiff and the Defendant was socially a marital community. Moreover, even when considering the circumstances acknowledged by the lower court as to the causes attributable to the Defendant, including various unfaithful acts of the Defendant, which caused the dissolution of marriage in this case, and the degree of responsibility thereof, it is difficult to readily conclude that there are special circumstances to deny marital life as a marital community

C. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning and accepted the Plaintiff’s claim for damages equivalent to the amount of expenses incurred in marriage and restitution to the original state against the Defendant. Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the scope of damages incurred in judicial divorce and restitution to the original state, which affected the conclusion of the judgment. The Defendant

D. Meanwhile, the Plaintiff’s ground of appeal on this part is based on the premise that each claim for damages and restitution is accepted, and thus, it cannot be accepted without the need for further determination.

However, the circumstance in which the claim for damages and restitution against the defendant is not accepted can affect the situation that should be considered in determining the amount of consolation money with respect to the claim for consolation money against the defendant. Therefore, the part of the judgment of the court below against the defendant as to the claim for consolation money against the defendant should be reversed without any need to further determine the grounds of appeal

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part concerning the claim for consolation money against the defendant among the judgment below against the defendant, and the part concerning the claim for compensation for damages and restitution of the original lawsuit against the defendant, which is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiff are dismissed. It is so decided as per Disposition by the

Justices Shin Young-chul (Presiding Justice)