[1] The meaning of "when the spouse, in bad faith, abandons the other spouse" under Article 840 subparagraph 2 of the Civil Code

[2] The exclusion period of the claim for divorce due to bad faith abandonment

[3] In a case where one of the married couple has contributed directly or indirectly to the other party's household labor, etc. when acquiring and maintaining real estate, whether such real estate is subject to division of property (affirmative)

[4] Property under the name of a third party and property division

[5] Diplomatic relations and damages

[1] When one spouse has deserted the other spouse in bad faith under Article 840 subparagraph 2 of the Civil Code, it refers to a case where the spouse has renounced the other spouse's obligation as a husband and wife who shall live together, support or cooperate with one another without any justifiable reason and has deserted the other.

[2] Even if the right to claim a judicial divorce based on bad faith is a formative right without limitation within the limitation period of 10 years, where the defendant continued to maintain an overlapping relationship and thus abandonment of the other spouse in bad faith under Article 840 subparagraph 2 of the Civil Code remains until the time of the claim for divorce, the right to claim a divorce may not be extinguished upon the lapse of the limitation period.

[3] If one of the married couple has contributed directly or indirectly to the other party's family labor, etc. in acquiring and maintaining the real estate that is inherited or already disposed of, it shall be subject to division of property.

[4] Even if a third party’s property is owned by a third party, if the property held in title by one of the married couple or one of the married couple actually controls, and is formed through mutual cooperation between the married couple or based on the tangible and intangible resources formed by mutual cooperation between the married couple, such circumstances should also be taken into account in the sense that division of property should be taken into account.

[5] The so-called overlapping contract is a juristic act whose content is contrary to good customs regardless of the existence of the principal wife's consent, and is illegal as well. Thus, barring any special circumstance, the father and the overlapping are obligated to compensate for the mental suffering suffered by the principal wife due to the overlapping relationship, and such liability for compensation does not necessarily require the failure due to the overlapping relationship. Meanwhile, the consent of the principal wife to the overlapping relationship in the future is null and void because it is contrary to good customs. However, if it is used for the overlapping relationship, the legal effect can be recognized as it is, unless it is interpreted as a waiver of the right for compensation.

[1] Article 840 of the Civil Act / [2] Article 842 of the Civil Act / [3] Article 839-2 of the Civil Act / [4] Article 839-2 of the Civil Act / [5] Article 84

[1] Supreme Court Decision 86Meu26 delivered on May 27, 1986 (Gong1986, 818) / [2] Supreme Court Decision 86Meu96 delivered on December 22, 1987 (Gong198, 344), Supreme Court Decision 96Meu1243 delivered on November 8, 196 (Gong1996Ha, 357) / [3] Supreme Court Decision 92Meu1054, 1061 delivered on June 11, 1993 (Gong1993Ha, 2020), Supreme Court Decision 94Meu734 delivered on October 25, 1994 (Gong1994, 397Hun-Ga, 1969 and 97Hun-Ga, 1969 decided Oct. 29, 195 (Gong1964, 209)

A

B

C

Seoul High Court Decision 95Reu2777 delivered on August 23, 1996

The part of the lower judgment’s claim against Defendant C is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal against Defendant B and Defendant B’s appeal are dismissed. The costs of appeal regarding the dismissed part of the appeal are assessed against each party.

1. Defendant B’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

A. As to the divorce and consolation money portion

(1) Examining the relevant evidence in light of the records, the lower court’s fact-finding on the details and causes of the failure of marriage between the Plaintiff and the Defendant B, and the lower court’s recognition and determination that the Plaintiff and the Defendant did not recognize the fact that the Plaintiff purchased and agreed to purchase the apartment house in its holding as consolation money on the premise of divorce between the Plaintiff and the Defendant B, is justifiable. In so doing, it did not err by misapprehending the facts against the rules of evidence or failing to exhaust all deliberations

(2) 민법 제840조 제2호 소정의 배우자가 악의로 다른 일방을 유기한 때라 함은 배우자가 정당한 이유 없이 서로 동거, 부양, 협조하여야 할 부부로서의 의무를 포기하고 다른 일방을 버린 경우를 뜻한다 할 것인바(대법원 1986. 5. 27. 선고 86므26 판결), 이 사건에 있어 원심이 인정한 바와 같이 피고 B가 1970. 11.경 이래 피고 C와 부첩(부첩)관계를 맺고 서울에서 동서(동서)생활을 하면서 이 사건 이혼청구 당시까지 20년 이상 원고로 하여금 홀로 경기 포천군 D 소재 집이나 출가한 딸들의 집 등에서 기거하게 한 이상, 설사 피고 B가 원고의 생활을 위하여 맏사위와 딸의 공동명의로 주택을 마련해 주었다 하더라도 피고 B의 위와 같은 축첩행위 자체가 부당하게 동거의무를 불이행한 것으로서 악의의 유기에 해당함에 충분하다고 할 것이다.

The judgment below to the same purport is not erroneous in the misapprehension of legal principles as to abandonment in bad faith. The ground of appeal is without merit.

(3) Even if the right to claim a judicial divorce based on bad faith is deemed to have taken place during the exclusion period of 10 years as a right to form a legal form without limitation of the exercise period, where Defendant B continued to maintain an overlapping relationship with Defendant C as in the instant case, and thus, Defendant B’s abandonment of one spouse in bad faith under Article 840 subparag. 2 of the Civil Act continues to exist until the time of filing a claim for divorce, the right to claim a divorce may not be extinguished upon the lapse of the said period (see Supreme Court Decision 96Meu1243, Nov. 8, 1996).

The judgment below to the same purport is not erroneous in the misapprehension of legal principles as to the extinguishment of a claim for divorce caused by bad faith. The ground of appeal is without merit.

B. As to the division of property

(1) In light of the records, the court below's fact-finding on each real estate listed in the separate sheet and the real estate in the name of the defendants admitted by Macheon-gun as well as the process of acquiring or forming real estate in the name of the defendants in the original adjudication of the plaintiff between the defendants or the defendants, and the judgment of the court below which held that the plaintiff contributed to the acquisition and maintenance of the above real estate by providing a lot of labor force not only to the defendant Eul's domestic affairs after marriage but also to farming as well as the domestic affairs after marriage with the defendant, shall be deemed justifiable, and there

If one of the married couple has contributed directly or indirectly to the other party's family labor, etc. when acquiring and maintaining the property inherited or already disposed of, even if it is real estate, it is subject to division of property (see, e.g., Supreme Court Decisions 92Meu1054, 1054, 1061, Jun. 11, 1993; 94Meu734, Oct. 25, 1994). Even if a third party's property is held in the name of a third party, if it is a property under a title trust by either of the married couple's cooperation or is formed by either of the married couple's cooperation, or based on the type or intangible resources formed by both couple's cooperation, such circumstances should also be considered.

In the same purport, the court below is just in regard to the person between the defendants or the defendants as the object of the division of property, and it is not erroneous in the misapprehension of legal principles as to the object of the division of property. The ground of appeal is without merit.

(2) Article 839-2(2) of the Civil Act, which applies mutatis mutandis to a judicial divorce pursuant to Article 843 of the Civil Act, provides that the court shall determine the amount and method of division by taking into account the amount of the property achieved through mutual cooperation between the parties and other circumstances. The other circumstances here include the same property condition as that of both parties at the time of the conclusion of the pleadings. As such, the court below's determination of the object and value of property division at the time of the conclusion of the pleadings is justifiable, and there is no error of law by misunderstanding legal principles as to the time of the standard of property division. The ground of appeal is

(3) According to the reasoning of the judgment below, the court below selected a method of dividing the real estate stated in the attached Tables 1 through 11 as owned by the plaintiff and the remaining real estate and expropriation compensation as owned by the defendant B, taking into account various circumstances, such as the circumstance of formation, management and utilization of the real estate subject to division, and the fact that there is no particular occupation in the case of order of division by monetary payment, and that the old defendant B suffers from difficulty in preparing it. The court below's aforementioned method of division is reasonable, and there is no ground for appeal pointing this out.

2. We examine the Plaintiff’s grounds of appeal.

A. As to the division of property

Examining the relevant evidence in light of the records, the fact-finding by the court below as to the process of forming the property subject to the division in this case and the degree of the plaintiff's contribution to it shall be deemed to be justifiable, and there is no error of law by misunderstanding facts against the rules of evidence, such as theory of lawsuit. The court below is just to determine the ratio and amount of the divided property to the plaintiff based on the following factors: (a) the formation process of the property as mentioned above, the continuance period of marriage, the background leading up to divorce, the party's age, property status, and both anticipated economic ability after divorce; and (b) there is no error of law by setting the ratio of division against the principle of equity. The ground for appeal

B. As to the claim for damages against Defendant C

(1) According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff saw the plaintiff's wife who did not have any son between the defendant Eul and continued to live together with the defendants, and let the non-party G, his her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's her son's son's son's son's her.

(2) The so-called overlapping contract is a juristic act whose content is contrary to good customs regardless of the existence of the principal wife’s consent, and is not only null and void, but also an unlawful act. Thus, barring any special circumstance, the father and the overlapping are liable to compensate for the mental suffering suffered by the principal wife due to the overlapping relationship, and such liability for compensation does not necessarily require the failure of marriage due to the overlapping relationship (see, e.g., Supreme Court Decisions 4293Da302, Sept. 29, 1960; 67Da99, Apr. 25, 1967).

On the other hand, the consent of the wife to the future intelligence relationship is against good customs and thus is null and void. However, when we use it for the intelligence relationship, the legal effect of it can be recognized as it is, insofar as it is interpreted as the waiver of the right to claim damages (see, e.g., Supreme Court Decisions 66Meu2, Mar. 22, 1966; 67Da1134, Oct. 6, 1967).

As recognized by the court below in this case, even if the plaintiff committed an active act, such as transferring a flag to the defendants, it is difficult to see that the plaintiff impliedly consented to the acts of violence in the future, and such agreement is null and void, and only if so, it can be deemed that the plaintiff exempted the defendant from liability for damages arising from the acts of violence in the future. However, as acknowledged by the court below, it is difficult to view that the plaintiff, as recognized by the court below, left the above D's house and did not participate in the plaintiff's request for divorce on or around March 1979 by taking advantage of the situation where the plaintiff, who did not take part in the plaintiff's house, left the house of the above D's house and moved the house of his father's mother and brought the lawsuit in this case. Since the plaintiff did not request the suspension of a flag relationship with the defendant C, it is difficult to view that the plaintiff renounced the defendant's right to claim compensation for damages without taking advantage of the malicious relation with the defendant's malicious act.

Ultimately, the judgment of the court below is erroneous in the misunderstanding of legal principles as to liability for damages caused by an overlapping relationship, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of the court below regarding the claim against Defendant C is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal against Defendant B and the appeal against Defendant B are dismissed, and the costs of appeal as to the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)