부부의 일방과 성적인 행위를 한 제3자의 손해배상책임

The Full Bench Decision (case no. 2011MEU2997, delivered on November 20, 2014) of the Supreme Court) which the plaintiff had claimed consolation money against the third party engaged in an act of infidelity with his wife for reason of a breakdown of marriage relations, first of all, the Korean Supreme Court decided that, if the third party engaged in an act of infidelity with a party of the married couple and so infringed their marital communal life corresponding to the essence of marriage or obstructed the maintenance of such marital communal life and invaded the rights as a spouse and then inflicted mental pains on the spouse, such act shall constitute a tort in principle, so that the court acknowledged the liability to pay consolation money due to the third party’ tort liability. On the other hand, the court also decided that, if their marital shared life has already broken down substantially so as to be unable to be retrieved although the married couple has not yet divorced, a tort can not be constituted even though the third party performed a sexual act with a spouse of the married couple, so that the court restricted the third party’ tort liability even though a marital communal life broke down. The purpose of this study is to examine the recent situations about the tort liability of the third party engaged in a sexual conduct with a spouse of the married couple in the foreign countries including France and Germany in a comparative perspective, and so discuss whether a tort can be constituted in the Korean laws if the third party does an act of infidelity with a party of the married couple, and then consider the constitution of a tort after marital breakdown, and further evaluate the rationality of the subject decision. In relation to the foreign laws, first of all, in Germany, this type of decisions has not been almost shown since the German Federal Court Decision delivered on December 19, 1989. In terms of violating the duty of fidelity, in principle, this decision did not clearly acknowledge any claims against the spouse violating the duty of fidelity as well as any claims against the third party. However, only if special preconditions or prerequisites were added to violating the duty of fidelity, exceptionally claims for damages were acknowledged in accordance with the Article 826 of the Civil Law in Germany. Next, in France, according to the Court of Cassation(the French Supreme Court) Civil Case Part 2 Decision delivered on July 5, 2001, the fact of engaging in a sexual relationship with a married person constitutes no civil negligence in itself. However, in the situations making the fact of having a sexual relationship more serious such tempting tricks or scandals, such civil negligence can be constituted. According to the Japanese Supreme Court Decision delivered in 1996 (Pyeong Seong 8), if A’s spouse, B, had a sexual relationship with the third party, C, C holds no tort liability to A without exceptional or special circumstances when marital relations between A and B had already broken down, which is supported by a majority opinion. In comparison with the foreign laws, the legal theory of the subject decision is wrong in which it constitutes a fort in principle to perform an act of infidelity and so infringes a marital communal life or hinders the maintenance of a marital communal life, and then invades the rights as a spouse and further inflict mental pains of the spouse. The right to the duty of fidelity between spouses should be regarded not as an absolute right but as a relative right which is effective only between spouses. It is only both parties in the marriage who should have or owe the duty of fidelity. Thus, it is based upon no clear legal rationale to interpret that such rights should be extended to the third party and further should be linked with the rights of spouses to a marital shared life. However, if a marital communal life broke down too much to be recovered any longer, the duty of fidelity between spouses is discharged, so that the third party’s act of infidelity with a spouse of the married couple constitutes no tort against the other spouse, which is rational as a majority opinion. Moreover, here, the indicator of judgments on marital breakdown is the existence of entities in a marital communal life and the objective retrievability of a marital communal life. In conclusion, if a party of the married couple violated the duty of fidelity, in order to protect the other party, it is rational not to pay consolation money due to the constitution of a tort but to arrange family laws including strengthening support and care after divorce and introducing the enforcement program of living costs or divorce payments.