〈Case concerning the burden of proof as to the fact that the marital community life had already broken down at the time of the act of infidelity〉[Gong 2024Ha, 1189]

【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) / Where, although the spouses have not yet divorced, the marital community life has substantively broken down to the point of being beyond recovery, whether a sexual act by a third party with one of the spouses constitutes a tort (negative), and who bears the burden of proving the circumstance that, at the time of the act of infidelity with one of the spouses, the spouses' community life had substantively broken down to the point of being beyond recovery (= the third party asserting it)

【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. However, if, although the spouses have not yet divorced, the marital community life has substantively broken down to the point of being beyond recovery, then even if a third party engages in a sexual act with one of the spouses, it cannot be said to be an act that infringes upon the marital community life or obstructs its maintenance, nor can it be said that a loss arises therefrom in the form of an infringement of the other spouse's rights concerning the marital community life; thus, it is difficult to find that a tort is established. Here, the circumstance that, at the time of the act of infidelity with one of the spouses, the spouses' community life had substantively broken down to the point of being beyond recovery must be proven by the third party asserting it.

【Referenced Statutes】

Articles 751 and 826 of the Civil Act; Article 288 of the Civil Procedure Act [burden of proof]

【Referenced Precedents】

Supreme Court Decision 2011Meu2997, November 20, 2014 (en banc) (Gong 2014Ha, 2361)

(Source: Supreme Court Decision 2022Meu13504, 13511, June 27, 2024 [Damages (Other); Damages (Other)] > Comprehensive Legal Information System, Precedents)