[1] In a case where each party clearly states his/her intention of divorce during the duration of a divorce lawsuit, whether it can be deemed as a divorce agreement corresponding to the common use of a divorce agreement (affirmative)

[2] The case holding that if during the course of a divorce lawsuit brought by both parties, the family affairs investigator's interview and investigation date clearly stated the intention of divorce itself in addition to the issue of consolation money, division of property, etc., the act of inter-spouse's inter-spouse's conduct

[1] If the parties have no longer intend to continue a matrimonial relationship and there is an obvious agreement with the intention of divorce, even if the marital relationship remains legally, it shall be deemed that the declaration of intention as to the use of a paper, which can be said to be the prior consent of the other party to the merger, is included in the agreement. However, if one or both parties have expressed their opinions about consolation money and division of property during the divorce lawsuit brought by either or both parties, it shall be reasonable to deem that at least there was an obvious agreement on divorce, if each party clearly expresses

[2] The case holding that in a case where during the divorce lawsuit filed by both parties, a family affairs investigator was present on three occasions on the date of the interview and investigation of the family affairs investigator and made a statement, but both parties clearly stated the same intent as to the divorce and they reached a separate decision in the course of the investigation and interview date, the act of inter-spouse's inter-spouse's inter-spouse's inter-spouse behavior constitutes a case where there is a clear agreement between both parties to

[1] Article 241 of the Criminal Code / [2] Article 241 of the Criminal Code

[1] Supreme Court Decision 95Do2819 delivered on February 25, 1997 (Gong1997Sang, 1018) Supreme Court Decision 2000Do868 Delivered on July 7, 2000 (Gong2000Ha, 1909) Supreme Court Decision 2003Do6102 Delivered on December 11, 2003, Supreme Court Decision 2006Do1759 Delivered on May 11, 2006

Defendant 1 and one other

Defendants

Attorney Kim Jong-chul

Seoul Central District Court Decision 2008No82 Decided April 17, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Comprehensively taking account of the evidence adopted, the court below found that ① the non-indicted 1 and the defendant 1 were married on April 30, 1982, and the non-indicted 1 filed a lawsuit against the defendant 1 on January 16, 2007 for divorce or consolation money on the grounds of unlawful acts, etc. by the non-indicted 1, and Defendant 1 filed a lawsuit against the non-indicted 1 on January 22, 2007 for divorce or consolation money, or division of property, and currently pending the lawsuit; ② the non-indicted 1 moved his place of residence to the non-indicted 2 on May 25, 2007, and the non-indicted 1 had no other evidence to acknowledge that the non-indicted 1 and the non-indicted 2 had no other opinion to the effect that the non-indicted 31 had no other opinion on the divorce before the above divorce had been expressed on the condition that the non-indicted 1 had no other opinion on the divorce.

2. However, the court below's measures are not acceptable for the following reasons.

In a case where the parties have no longer intend to continue a matrimonial relationship and there is an obvious agreement with the intention of divorce, even if the parties continue to exist legally, they shall be deemed to be included in the agreement. Whether there was an obvious agreement between the parties to divorce, as well as in the case where a written agreement has been made by the parties to divorce, and it is recognized that there was no intention to maintain a matrimonial relationship any longer for both of the parties to the marriage, and that there was such agreement with the other party to the claim for divorce, even if there was a circumstance where the other party to the claim for divorce seems to have been able to respond thereto (see Supreme Court Decisions 95Do2819, Feb. 25, 1997; 2003Do6102, Dec. 11, 2003; 2003Do6102, etc.). Although one or both of the parties did not have an obvious opinion with respect to a divorce and a divorce investigator, it is obvious that there was no agreement between the parties to divorce and an investigator of family affairs.

Therefore, the court below should have deliberated and determined whether the Nonindicted Party and Defendant 1 agreed on divorce at least on the interview date of the family affairs investigator on April 3, 2007, which had been prior to the instant simple act. However, the circumstances stated in the judgment are insufficient to conclude that prior to the instant case, the agreement between the Nonindicted Party and Defendant 1 on divorce intention including the intention of provisional, temporary, and conditional divorce, is not sufficient, and thus, affirmed the judgment of the court of first instance convicting the Defendant of the instant facts charged. In such a case, the court below erred by misapprehending the legal principles on the use of simple common act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Therefore, without further examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)