사실혼관계에서 혼인신고시 상대방이 의사무능력 상태인 경우 그 혼인의 효력 —대법원 2012.11.29. 선고 2012므2451 판결의 의미—

Until now, in Korea, the lower court holding narrowly interpreted “long time absence” and “no contact to the family” as an uncertain the marriage intent whether there is marriage intent when marriage registration is filed during the de facto marriage. Therefore it is certain that the marriage is voidable where opponent party is incompetent by the missing of the marriage intent. Owing to such interpretation, the lower court decision put appellate court’s presumption theory in the shade when the marriage registration is filed during the de facto marriage under the opponent party is incompetent by citing imprudently. However, the Supreme Court rendered differently in the subject case compared with lower level judgment that the court treated long time absence and no contact to the family is not different from the incompetent. In the subject case the Supreme Court only confirmed presumption theory by citing appellate court decisionbut significance is considerably important. In other words, the Supreme Court clearly presented (i) the standard of the scope of marriage intent is uncertain, (ii) removed confusing when cited precedent in the lower level court, (iii) in the concrete situation the court should considered entire circumstances such as the marriage intent and maintaining de facto marriage. In this regard the subject judgment analysis is important and will be brought clear impact to the practice of judicial branch and academic society.