〈Case concerning whether, where a spouse who committed an act of infidelity paid money to the other spouse as consolation money, division of property, and the like, this may be taken into account in calculating the amount of consolation money owed by the third party who committed the act of infidelity〉[Gong 2024Ha, 1191]

【Holding】

Whether an act by a third party who, by committing an act of infidelity with one spouse, infringes upon or obstructs the maintenance of the marital community life that constitutes the essence of marriage, infringes upon the other spouse's rights as a spouse in that regard, and thereby inflicts mental suffering on the other spouse constitutes a tort (affirmative in principle), and whether the tort liability borne by the one spouse and by the third party constitutes joint tort liability standing in a relationship of quasi-joint and several obligation (affirmative) / Where the spouse who committed the act of infidelity paid the other spouse damages arising from the joint tort, whether the effect of that performance extends to the third party as well (affirmative) / Where the spouse who committed the act of infidelity paid money to the other spouse in the course of divorce under the name of consolation money or the like, but that money included not only consolation money but also money of a different nature, such as a property division payment or child support, so that it is difficult to distinguish and specify the portion of that money constituting consolation money for the joint tort, whether the court may take this into account in calculating the amount of consolation money to be borne by the third party (affirmative)

【Summary of Decision】

An act by a third party who, by committing an act of infidelity with one spouse, infringes upon or obstructs the maintenance of the marital community life that constitutes the essence of marriage, infringes upon the other spouse's rights as a spouse in that regard, and thereby inflicts mental suffering on the other spouse constitutes, in principle, a tort. The tort liability borne by the third party accordingly constitutes, together with the tort liability borne by the spouse who committed the act of infidelity toward the other spouse, joint tort liability standing in a relationship of quasi-joint and several obligation.

Since, as between quasi-joint and several obligors, a cause such as performance that achieves the object of the claim has absolute effect with respect to all of the obligors, where the spouse who committed the act of infidelity paid the other spouse damages arising from the joint tort, the effect of that performance extends to the third party, who is a quasi-joint and several obligor, as well.

There are cases in which the spouse who committed the act of infidelity paid money to the other spouse in the course of divorce under the name of consolation money or the like, but that money included not only consolation money but also money of a different nature, such as a property division payment or child support, so that it is difficult, for that reason, to distinguish and specify the portion of that money constituting consolation money for the joint tort. In such cases, the court may take into account the circumstance that the one spouse paid money to the other spouse as part of the consolation money in calculating the amount of consolation money to be borne by the third party.

【Referenced Statutes】

Articles 419, 751, 760, 826, and 840 of the Civil Act

【Referenced Precedents】

Supreme Court Decision 2004Da66001, June 23, 2005 (Gong 2005Ha, 1232)
Supreme Court Decision 2011Meu2997, November 20, 2014 (en banc) (Gong 2014Ha, 2361)
Supreme Court Decision 2013Meu2441, May 29, 2015 (Gong 2015Ha, 875)

(Source: Supreme Court Decision 2023Meu12782, June 27, 2024 [Action for Divorce, etc.] > Comprehensive Legal Information System, Precedents)