[1] The case where a responsible spouse's right to divorce is recognized

[2] The case holding that the judgment below which accepted the claim for divorce by the responsible spouse was erroneous in the misapprehension of legal principles as to the claim for divorce by the responsible spouse

[1] As a matter of principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of such failure. However, even if it is objectively evident that the other party has no intention to continue the marriage after the failure, the other party is allowed to file a claim for divorce by the responsible spouse, except in exceptional cases where there are special circumstances, such as where he/she is not in compliance with a

[2] The case holding that the judgment below which accepted the claim for divorce by the responsible spouse Gap on the ground that the marriage relationship between Gap and Eul was actually broken down and there is no possibility of a judgment agreement, although it is objectively obvious that Eul does not have any intention to continue the marriage, it is difficult to view that Eul does not refuse the divorce in misunderstanding or retaliation sentiment, and that the judgment below which accepted the claim for divorce by the responsible spouse Gap on the ground that the marriage relationship was actually broken down and there is no possibility of a judgment agreement.

[1] Article 840 of the Civil Code / [2] Article 840 of the Civil Code

[1] Supreme Court Decision 2004Meu1033 delivered on September 24, 2004 (Gong2004Ha, 1740)

Plaintiff (Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

Defendant (Supplementary Patent Attorney Park Young-deok et al., Counsel for the defendant-appellant)

Principal of the case

Suwon District Court Decision 2008Reu882 Decided February 2, 2009

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

We examine the grounds of appeal.

1. Summary of the judgment below

1. Comprehensively taking account of the following facts: ① the Plaintiff’s 0th of May 198 and the Defendant’s 2nd of May, 198, and the Plaintiff’s 2nd of May, 2000, did not unilaterally request the Defendant to recover 7th of May, 200, and the Plaintiff’s 0th of May, 200, and the Plaintiff’s 2nd of May, 2000, had no longer been able to recover from the Plaintiff’s 7th of May, 200. The Plaintiff’s 1st of October, 207, 207, and the Plaintiff’s 2nd of October, 200, had no longer been able to recover from the Plaintiff’s 7th of May 2nd of May, 200. The Plaintiff’s 1st of May 2nd of October 20, 200, 200.

Furthermore, while there is no evidence to acknowledge that the Defendant was refusing a divorce in misunderstanding or retaliation, denying a divorce claim solely on the ground that the Defendant is a responsible spouse, even though the marriage is actually broken down and there is no possibility to reach a judgment, is compelling not only to exist in the actual life, but also to the other spouse in terms of the right to pursuit of happiness, the right to privacy, and the stability of status order as human beings, and the protection of the other party’s spouse or child can be resolved by making the other party’s spouse and the other party’s spouse resolve the same degree of life as before the marriage through the realization of the money for consolation, division of property, the right to claim for child support, etc. following the premise that it is unreasonable to not allow a divorce claim just because the other party is a responsible spouse. In light of the fact that the Plaintiff did not have any marital relationship from around 2005, and even if the Plaintiff recognized his past misconduct and did not have any intent to criticize and maintain the Defendant’s living attitude, the Plaintiff’s claim for divorce agreement was accepted on the ground that the marriage in this case actually failed.

2. Judgment of the Supreme Court

In principle, a spouse who is mainly responsible for the failure of the marital life may not file a petition for divorce on the ground of the failure. However, even though it is objectively evident that the other party has no intention to continue the marriage after the failure, a claim for divorce by the responsible spouse is exceptionally allowed only in special circumstances, such as where he/she does not comply with the divorce in misunderstanding or retaliation sentiment (see Supreme Court Decision 2004Meu1033, Sept. 24, 2004).

As above, the court below determined that the plaintiff who abandons the principal of the case and caused the failure of the marriage between the plaintiff and the defendant by establishing an illegal relationship with another woman, demanding the divorce unilaterally and without paying the living expenses. Although it is objectively evident that the defendant does not have any intention to continue the marriage, it is difficult to deem that the plaintiff and the defendant did not have any marital relationship with the plaintiff from around May 2005, and the plaintiff did not have any other marital relationship at all, but strongly indicate that the plaintiff did not have an intention to maintain the marital relationship with the defendant's living attitude, etc., while recognizing the plaintiff's claim for divorce on the ground that the marital relationship in this case actually goes in effect and there is no possibility to reach a judgment, the court below accepted the plaintiff's claim for divorce on the ground that there is no possibility to reach a judgment. In light of the above legal principles, the court below's determination is unacceptable in light of the above legal principles.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Hong-hoon (Presiding Justice)