[1] The case where the right to divorce is recognized to the responsible spouse

[2] The case holding that there are special circumstances to recognize the right to divorce against the responsible spouse

[1] A spouse who is solely or mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of the failure, but in exceptional cases where special circumstances exist, such as where it is objectively apparent that the other party has no intent to continue the marital life, and it is objectively obvious that he/she does not have any intention to continue the marital life, but he/she is not in response to a divorce in writing or retaliation.

[2] The case reversing the judgment of the court below on the ground that there is sufficient room to view that the other party of the responsible spouse has refused the divorce only on the surface in the misunderstanding or retaliation appraisal even though he did not have any intention to continue marital life

[1] Article 840 subparag. 1 and 6 of the Civil Act / [2] Article 840 subparag. 1 and 6 of the Civil Act

[1] Supreme Court Decision 92Meu90 delivered on February 12, 1993 (Gong1993Sang, 977), Supreme Court Decision 92Meu90 delivered on March 9, 1993 (Gong1993Sang, 1173), Supreme Court Decision 91Meu177 and 184 delivered on November 26, 1993 (Gong194Sang, 202), Supreme Court Decision 95Meu731 delivered on November 21, 1995 (Gong196Sang, 56)

Plaintiff (the maximum attorney ex officio and one other, Counsel for the plaintiff-appellant)

Defendant (Attorney Ahn Byung-hee, Counsel for defendant-appellant)

Busan High Court Decision 92Reu716 delivered on May 12, 1994

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the maximum grounds for appeal by the Plaintiff’s attorney-at-law and the ground for appeal by the Plaintiff’s Park Byung-young

According to the reasoning of the judgment below, the court below rejected the plaintiff's allegation that the plaintiff had been suffering from the above 0th time of telephone 20 days after the plaintiff's death, and the defendant had been suffering from 10 days after 20 days after 20 days after 20 days after 20 days after 20 days after 3 days after 3 days after 20 days after 3 days after 3 days after 3 days after 1970 after 10 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 3 days after 1977 after 19 days after 2 days after 20 days after 19 days after 10 days after 10 days after 3 days after 20 days after 19 days after 10 days after 20 days after 20 days after 2 days after 1979.

2. As to the ground of appeal No. 2 by the Plaintiff Park Byung-chul, Counsel for the plaintiff-appellant

A spouse who is solely or mainly responsible for the failure of the marital life may not file a petition for divorce on the ground of such failure. However, in exceptional cases where there are special circumstances, such as that the other party is objectively clear that he/she has no intention to continue the marital life, and that he/she does not comply with the divorce in a clerical or retaliation appraisal, it is exceptionally acknowledged that the right to claim a divorce has been recognized (see, e.g., Supreme Court Decisions 95Meu731, Nov. 21, 1995; 91Meu17, Nov. 26, 1993; 92Meu90, Mar. 9, 193; 92Meu778, Feb. 12, 1993).

According to the facts and records acknowledged by the court below, the defendant has been dedicated to the plaintiff's business since 1976 (No. 3-2, No. 14, the defendant's statement), and the defendant's attorney at the court below's sixth date for pleading (Records No. 1196) stated that the plaintiff cannot be divorced to the plaintiff in order to prevent marriage with other people, even though he did not think of the marital relationship with the plaintiff, on September 23, 1990, after the marital failure between the plaintiff and the defendant, the plaintiff was detained on May 22, 1992, and the plaintiff was released on bail on June 4, 1993. The plaintiff was released on bail on June 29, 193. The defendant's attorney at the court below's sixth date for pleading (Records No. 1196) of the court below's judgment, and the defendant's attorney at the court stated that the plaintiff cannot continue to divorce with other people, unless there is any room to refuse divorce from the surface of the marriage.

Therefore, the court below's dismissal of the plaintiff's claim of this case on the ground that all the responsibility for the failure of marital life lies in the plaintiff. It is erroneous in the misapprehension of the legal principles as to the right to divorce of the responsible spouse and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

In addition, even if the failure of the marriage between the plaintiff and the defendant was caused by frequent appearance of the plaintiff, as recognized by the court below, if the defendant discovered the plaintiff's face by drinking, and forced the plaintiff's face by drinking, and then, the situation becomes final and conclusive by moving the plaintiff's head again by moving the plaintiff again to the next day, and then the situation becomes final and conclusive by moving the plaintiff again, it is deemed that the plaintiff's hostile attitude and the cause of violence, etc. were also caused by the plaintiff's re-taking. Thus, it is necessary to further examine whether the plaintiff's liability for the failure of the marriage between the plaintiff and the defendant can only be seen as the plaintiff.

3. 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 Lee Jae-soo (Presiding Justice)