〈Case concerning whether, where a claim for consolation money between spouses on the ground of divorce was dismissed on the determination that the degrees of fault of both spouses were equal, a claim for consolation money on the ground of divorce may be brought against a third party〉[Gong 2024Ha, 1194]

【Holding】

Where one spouse, asserting that the marital relationship broke down due to the other spouse's act of infidelity, brought a claim for consolation money against that spouse, but the court dismissed the claim on the determination that the degrees of fault of both spouses for the breakdown of the marital relationship were equal, whether the other spouse's liability for damages for the breakdown of the marital relationship never arose in the first place (affirmative) / Where the liability for damages of the spouse who committed the act of infidelity does not arise, whether liability for damages on the ground of divorce is recognized against a third party who participated in that spouse's act of infidelity (negative) / Whether this legal principle applies equally where one spouse, asserting that the marital relationship broke down due to the other spouse's act of infidelity, brought a principal claim for consolation money against that spouse, and the other spouse in turn brought a counterclaim for consolation money, but the court dismissed both the principal claim and the counterclaim for consolation money on the determination that the degrees of fault of both spouses for the breakdown of the marital relationship were equal (affirmative)

【Summary of Decision】

Where one spouse, asserting that the marital relationship broke down due to the other spouse's act of infidelity, brought a claim for consolation money against that spouse, but the court dismisses the claim on the determination that the degrees of fault of both spouses for the breakdown of the marital relationship were equal, it must be held that the other spouse's liability for damages for the breakdown of the marital relationship never arose in the first place. This is because the basis for recognizing liability for damages on the ground of divorce lies not in the individual culpable acts constituting grounds for divorce, such as an act of infidelity, but in the fact that the marital relationship broke down as a result thereof and led to divorce, so that where the degrees of fault of both spouses for the breakdown of the marital relationship are equal, responsibility for the breakdown of the marital relationship cannot be imposed on one of the spouses. Furthermore, inasmuch as the liability for damages of the spouse who committed the act of infidelity does not arise, liability for damages on the ground of divorce is likewise not recognized against a third party who participated in that spouse's act of infidelity. And this legal principle applies equally where one spouse, asserting that the marital relationship broke down due to the other spouse's act of infidelity, brought a principal claim for consolation money against that spouse, and the other spouse in turn brought a counterclaim for consolation money, but the court dismisses both the principal claim and the counterclaim for consolation money on the determination that the degrees of fault of both spouses for the breakdown of the marital relationship were equal.

【Referenced Statutes】

Articles 751 and 760 of the Civil Act

(Source: Supreme Court Decision 2023Meu16678, June 27, 2024 [Consolation Money] > Comprehensive Legal Information System, Precedents)