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논문 기본 정보

자료유형
학술저널
저자정보
한삼인 (제주대학교) 김상헌 (광주지방법원 국선전담변호사)
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한양대학교 법학연구소 법학논총 법학논총 제32권 제4호
발행연도
2015.1
수록면
355 - 376 (22page)

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초록· 키워드

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Under Civil Act that adopts common-law marriage, the parties to the marriage bear the obligations of cohabitation, life support, and cooperation as well as sexual faithfulness as one element of the obligation of cohabitation. Therefore, if a third party engages in cheating with either spouse of a married couple and has thereby breached or interfered with the maintenance of the shared life of the married couple and inflicted mental torment on the other spouse by violating his or her rights as a spouse, this is unlawful and basically constitutes a tort. If a third party engages in cheating with either party of a married couple when the shared life of a married couple is in jeopardy and there is no chance of recovering a conjugal community, how is it? In this regard, the Korean Supreme Court stated through the rule of its en banc session (2011므2997) entered on Nov. 20, 2014 that even under the Civil Act which does not adopt marital breakdown as a cause of a divorce, if shared life of a married couple has broken down so severely that the relationship cannot be restored, a third party who engages in sexual conduct with either spouse of the married couple, cannot be deemed to breach or interfere with the maintenance of the shared life of the married couple, and does not constitute a tort because it cannot be said that damage is caused by a breach into a spouse’s rights to the shared life of the couple. The other opinion in the above Supreme Court decision criticizes the majority opinion for easily concluding that the right to the shared life of a married couple, namely, the obligation of sexual faithfulness has been lost because of marital breakdown. Still, one difficulty with the majority opinion is that marital breakdown remains an uncertain and fluid concept. To accept a breakdown that does not cause damage to either spouse presupposes either an objective condition such as filing for divorce or a spouse’s prior permission of the other spouse’s sexual conduct with a third party. Therefore, I think that the logic of the minority opinion is more valid and clear.

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