In case where the other party seeks a divorce by means of a counterclaim against a claim for divorce by a responsible spouse, whether the circumstance alone can be deemed to have the right to claim a divorce against the responsible spouse (negative)

In principle, a spouse who is mainly responsible for the failure of the marital life may not file a divorce on the ground of such failure. However, even though it is objectively evident that the other party has no intention to continue the marriage after such failure, a divorce may be exceptionally filed only when there are special circumstances, such as the other party’s failure to comply with the divorce in misunderstandings or retaliation sentiment. Even if the other party contests the claim for divorce by the responsible spouse on the ground of other facts, and instead, he/she files a divorce on the ground of other facts, such circumstance alone cannot be readily concluded that the other party immediately refuses to comply with the claim for divorce by the responsible spouse in misunderstandings or retaliation sentiment even though

Article 840 of the Civil Act

Supreme Court Decision 86Meu28 delivered on April 14, 1987 (Gong1987, 810) Supreme Court Decision 91Meu177 and 184 delivered on November 26, 1993 (Gong1994Sang, 202) Supreme Court Decision 96Meu98 Delivered on November 8, 1996 (Gong196Ha, 3576) (Gong197Sang, 1735) Decided May 16, 1997

Plaintiff (Counter-Defendant) (Attorney Regular Mon-soo, Counsel for defendant-appellant)

Defendant-Counterclaim (Law Firm General Law Office, Attorneys Yoon Jong-tae et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 97Reu1242, 1259 delivered on November 13, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

1. The court below: (a) on March 13, 1951, the plaintiff (Counterclaim defendant, the plaintiff from the next day, the next day), and the defendant (the plaintiff Counterclaim plaintiff, the next day), married 2 South and North Korean women from the second son to the second son on March 13, 1951; (b) on the ground that the plaintiff's home inequality deepens due to the lack of the characteristics, the plaintiff was able and intelligent; (c) upon the defendant's desire to take a bath to the defendant; (d) threatened her house by leading the defendant's head debt, leading the defendant's house, leading the defendant's house, leading the defendant's house to the defendant; and (e) decided that the defendant's house head and family head around 1962, the defendant was living hard to congested for 35 years until now; (e) the plaintiff left her mother and son with his second son and his second son son; (e) the plaintiff's property and her new her family life had been divorced between the defendant and the defendant.

2. A. Examining the records in comparison with the records, the fact-finding and judgment by the court below as to the circumstance and cause of the failure of the marriage between the plaintiff and the defendant is justifiable, and there is no illegality in misconception of facts against the rules of evidence. Therefore, the grounds of appeal on this point are not accepted.

B. 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 if it is objectively evident that the other party has no intention to continue the marriage after the failure, a divorce may be exceptionally filed only when there are special circumstances, such as the other party’s failure to comply with the divorce in misunderstanding or retaliation sentiment (see Supreme Court Decision 97Meu155, May 16, 1997). Even if the other party asserts the claim for divorce against the responsible spouse on the ground of other facts, even if the other party files a claim for divorce on the ground of a counterclaim, such circumstance alone cannot be readily concluded that the other party does not immediately respond to the claim for divorce in misunderstanding or retaliation appraisal even though he/she did not intend to continue the marriage.

In this case, the defendant can be seen to have refused the plaintiff's request for divorce on the ground that his children opposed to the divorce and cannot respond to the divorce without any means of living. In addition, in light of the fact that the defendant refused the plaintiff's request for divorce, but the plaintiff did not make the plaintiff's request for divorce because they did not make the plaintiff's request for divorce, and that he did not respond to the plaintiff's request for divorce after the plaintiff brought the principal lawsuit in this case, and that he argued that the plaintiff's consciousness cannot be seen as having reached a conclusion of divorce because he cannot be seen as being a parent's consciousness. In light of the above, the defendant cannot be deemed to have refused the plaintiff's request for divorce in writing or retaliation appraisal even though he did not intend to continue

In the same purport, the court below is justified in rejecting the claim of this case on the ground that the plaintiff, who is mainly responsible for the failure of the marital life despite the defendant's counterclaim of this case, cannot file a claim for divorce on his own, and there is no error of law by misunderstanding the legal principles on the claim for divorce by the responsible spouse. The court's decisions that the plaintiff is liable for divorce are different from this case, and thus it does not contribute to the resolution of this case. Accordingly, the grounds for appeal

C. In light of the facts acknowledged by the court below and all other circumstances revealed in the argument of this case, the amount of consolation money recognized by the court below is acceptable, and there is no error in the misapprehension of legal principles as to the calculation of consolation money. Therefore, the ground of appeal on this point is not accepted

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)