[Plaintiff, Appellant] Plaintiff (Counsel: Cheongpung Law Firm, Attorney Ryu Seong-ryong)
[Defendant, Appellee] Defendant (Counsel: Attorney Choi Jeong-a)
[Judgment Below] Cheongju District Court Judgment 2024Reu50409, dated April 10, 2025
[Order]
The judgment below is reversed, and the case is remanded to the Cheongju District Court.
[Reasoning]
The grounds for appeal are examined.
1. Overview of the Case
According to the reasoning of the judgment below and the record, the following facts may be found.
A. The Plaintiff and Co-Defendant 1 of the first instance were legally married, having reported their marriage on January 5, 1998, and had three adult children together.
B. Beginning around early 2017, the Defendant and Co-Defendant 1 of the first instance had a romantic relationship, addressing each other as "wife," "husband," "darling," etc., and exchanging KakaoTalk messages suggesting physical contact. After the Plaintiff learned of these conversations, she protested to the Defendant, but the Defendant continued the relationship with Co-Defendant 1 of the first instance for a certain period thereafter, and the Defendant's husband, a non-party, called Co-Defendant 1 of the first instance around July 10, 2017, to protest.
C. On October 13, 2022, the Plaintiff filed the instant lawsuit against Co-Defendant 1 of the first instance seeking divorce on the grounds set forth in Article 840, Subparagraphs 1 and 6 of the Civil Act (민법), and simultaneously against Co-Defendant 1 of the first instance and the Defendant seeking consolation money (solatium) on the ground that the marital relationship between the Plaintiff and Co-Defendant 1 of the first instance had broken down due to the infidelity of the two. In response, Co-Defendant 1 of the first instance filed a counterclaim against the Plaintiff on January 9, 2023, seeking divorce, among other things.
D. While the first instance proceedings of this case were pending, on July 20, 2023, a settlement (mediation) was reached between the Plaintiff and Co-Defendant 1 of the first instance, and the Plaintiff and Co-Defendant 1 of the first instance were divorced.
2. Judgment of the Court Below
The court below, on the premise that where a third party engages in infidelity with one spouse, thereby infringing upon or obstructing the maintenance of the marital community of husband and wife and infringing upon the rights of the other spouse, it is not possible to recognize, in addition to the "right to claim damages based on the tort itself constituting the third party's infidelity," a separate right, namely, "the right to claim damages on the ground that the marital relationship broke down due to the third party's infidelity," found that the Defendant, knowing that Co-Defendant 1 of the first instance had a spouse, committed a tort causing the Plaintiff mental suffering by engaging in infidelity with Co-Defendant 1 of the first instance. However, the court below construed the Plaintiff's right to claim consolation money against the Defendant arising therefrom as "the right to claim damages based on the tort itself constituting the Defendant's infidelity," and determined that the Plaintiff must be deemed to have known the "damage and the tortfeasor" as set forth in Article 766(1) of the Civil Act around 2017, when the Plaintiff learned of the infidelity between the Defendant and Co-Defendant 1 of the first instance, and since it is clear from the record that the instant lawsuit was filed on October 13, 2022, more than three years after that time, the said right to claim consolation money had already been extinguished by prescription before the filing of the instant lawsuit.
3. Judgment of the Supreme Court
The above determination of the court below is difficult to accept for the following reasons.
A. Relevant Legal Principles
1) Where one spouse commits infidelity, that spouse bears liability for damages based on tort for the mental suffering thereby caused to the other spouse. Where a third party commits infidelity with one spouse, thereby infringing upon or obstructing the maintenance of the marital community of husband and wife, which is the essence of marriage, and infringing upon the rights of the other spouse as a spouse, thereby causing the other spouse mental suffering, such act, in principle, also constitutes a tort. Furthermore, the tort liability borne by the one spouse and the third party is joint tort liability, and they are in a relationship of quasi-joint and several obligation (see Supreme Court en banc Decision 2011Meu2997, decided November 20, 2014; Supreme Court Decision 2013Meu2441, decided May 29, 2015).
2) The right to claim consolation money on the ground of divorce is a right to claim damages intended to console the mental suffering incurred by the spouse where the marital relationship has broken down and divorce has resulted due to the culpable and unlawful conduct of one spouse; the entire series of events from the occurrence of the individual culpable act that caused the divorce to the final divorce is grasped as a tort as a whole and is fixed and evaluated at the time of the final divorce (see Supreme Court Decision 92Meu143, decided May 27, 1993; Supreme Court Decision 2024Meu11526, 11533, decided October 25, 2024). In such a case, it is reasonable to view that the victimized spouse who is the other party came to know of the damage and the tortfeasor at the time the marriage was dissolved, and thus the short-term statute of limitations set forth in Article 766(1) of the Civil Act is completed only upon the passage of three years from that time (see Supreme Court Decision 2013Meu3963, 3970, decided June 24, 2015).
3) Where one spouse commits infidelity with a third party, the other spouse's claim against the erring spouse or the third party for consolation money on the ground of divorce constitutes a Group Da family litigation case as set forth in Article 2(1)1(c)2) of the Family Litigation Act (가사소송법). Separately from this, the other spouse may, regardless of divorce, bring a claim against the erring spouse or the third party for damages to console the mental suffering incurred as a result of grasping the individual act of infidelity occurring during the marital community as a tort, and this belongs to an ordinary civil case. Meanwhile, whether a claim falls under a claim for consolation money on the ground of divorce must be comprehensively determined in the specific case by considering the intent of the parties, whether the parties are maintaining the marital relationship, whether a divorce by agreement has been concluded, or whether one spouse has sought judicial divorce, the progress of the judicial divorce litigation, and so forth (see Supreme Court Decision 2021Da253154, 253161, decided November 25, 2021).
B. Determination in this Case
Examining the facts found above and the progress of the litigation as shown in the record in light of the above legal principles:
The Plaintiff (1) in the complaint in this case, while claiming consolation money against the Defendant and Co-Defendant 1 of the first instance, asserted that "because the marital relationship between the Plaintiff and Co-Defendant 1 of the first instance broke down due to the infidelity of the Defendant and Co-Defendant 1 of the first instance, the Defendant and Co-Defendant 1 of the first instance are jointly liable to pay consolation money to the Plaintiff"; (2) after the divorce mediation was concluded between the Plaintiff and Co-Defendant 1 of the first instance on July 20, 2023, while the first instance was pending, asserted in the brief dated June 13, 2024, in response to the Defendant's defense of extinctive prescription, that "the Plaintiff's right to claim consolation money against the Defendant is a right to claim consolation money on the ground that the marital relationship between the Plaintiff and Co-Defendant 1 of the first instance broke down due to the infidelity of the Defendant and Co-Defendant 1 of the first instance, and therefore the point in time when the Plaintiff became aware of the infidelity of the Defendant and Co-Defendant 1 of the first instance cannot be taken as the starting point of the statute of limitations"; and (3) in the court below, again asserted in the brief dated February 5, 2025, that "the Plaintiff's claim for consolation money against the Defendant is not a claim for damages grasping the individual acts of infidelity of the Defendant and Co-Defendant 1 of the first instance themselves as a tort, but rather a claim for damages on the ground that the marital relationship broke down and resulted in divorce due to the past infidelity of the Defendant and Co-Defendant 1 of the first instance, and therefore the statute of limitations runs from the time the divorce mediation was concluded between the Plaintiff and Co-Defendant 1 of the first instance."
As such, the Plaintiff clearly made it known that the instant claim was a claim for consolation money on the ground that the marital relationship between the Plaintiff and Co-Defendant 1 of the first instance broke down due to the infidelity of the Defendant and Co-Defendant 1 of the first instance, ultimately resulting in divorce, and this constitutes a "claim for consolation money on the ground of divorce" falling under a Group Da family litigation case as set forth in Article 2(1)1(c)2) of the Family Litigation Act, which is a claim recognized separately from a claim for consolation money on the ground of an individual culpable act occurring during the marital community. Accordingly, the court below should have treated the instant claim, in accordance with what the Plaintiff sought, as a claim for consolation money on the ground of divorce, and should have determined the merits of the cause of action, including the existence of a causal relationship between the infidelity and the breakdown of the marital relationship, and, if it accepted the Plaintiff's assertion as to the cause of action, should have determined the merits of the Defendant's defense of extinctive prescription by taking the time of dissolution of the marriage between the Plaintiff and Co-Defendant 1 of the first instance as the starting point of the short-term statute of limitations for the instant right to claim consolation money.
Nevertheless, the court below, on the sole basis of the reasoning set forth in its judgment, premised that, in addition to the Plaintiff's right to claim damages based on the tort itself constituting the infidelity of the Defendant and Co-Defendant 1 of the first instance, no separate right to claim damages on the ground that the marital relationship broke down due to the infidelity of the Defendant and Co-Defendant 1 of the first instance could be recognized, and then treated the Plaintiff's instant claim as "a claim for damages based on the tort itself constituting the infidelity of the Defendant and Co-Defendant 1 of the first instance," and determined the merits of the Defendant's defense of extinctive prescription by taking the time when the Plaintiff became aware of the Defendant's infidelity as the starting point of the short-term statute of limitations. Such determination by the court below contains an error of misunderstanding the legal principles concerning the nature of the right to claim consolation money on the ground of divorce arising from infidelity between one spouse and a third party and the starting point of the statute of limitations therefor, and further contains an error of violating the principle of party disposition (처분권주의) set forth in Article 203 of the Civil Procedure Act (민사소송법) by rendering judgment on a matter not sought by the Plaintiff. The ground of appeal pointing this out is well-founded.
4. Conclusion
The judgment below is reversed, and the case is remanded to the court below for further hearing and determination, and it is so decided by unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Roh Tae-ak (Presiding Justice), Seo Kyung-hwan, Shin Sook-hee (Justice in charge), Ma Yong-ju