배우자에 대한 정조의무 위반과 이혼위자료 ―재산분할 및 위자료의 기능을 고려하여―

One who did an act of infidelity should be legally sanctioned, i.e., he(or she) cannot file for divorce, should pay damages to the other party. This article, which discusses the role relationship between nonpecuniary damages for divorce and division of property, summarizes the following. 1. Non-pecuniary Damages for Divorce and compensation for damages under Article 806(2) of the Civil Act shall be based on the principle of compensating the reliance interest in the sense that it is aimed at the settlement of the marital relationship. In this respect, the compensation of damages under Article 806(2) is not liable for illegal acts but liable for damages due to the breach of contract. 2. Legislative, it is desirable to realize the liquidation of property relations through property division. The realization of post-divorce care through divorce compensation and damages under Article 806 (2) is not reasonable in that it reverses the differentiation of institutional functions. It is desirable to provide support after divorce through the separate system. 3. In calculating the non-pecuniary damages for divorce in violation of the duty of fidelity, the amount of alimony shall not be increased for sanctions and deterrence against marital infidelity. Even if considering the sanctions factor in the case of calculating the alimony, it is for the purpose of overcoming the methodological difficulties for the case, but not for the sanction, so the divorce obligation should not be used for sanction. In the future, it will be appropriate to set up a support system after the divorce. Ultimately, it is reasonable that the divorce obligation is directed only to the compensation of the damage caused to the victim. In addition, we expect that objective and specific criteria for the alimony calculation that faithfully reflects the damage occurred to the victim.