당사자 사망과 이혼위자료 청구소송의 종료 여부에 관한 소고

In case a party died while divorce and consolation money lawsuits were pending, the Supreme Court Decision 2013Meu5495, 5501 decided that consolation money proceedings should be terminated unlike the Supreme Court Decision 92Meu143. The Supreme Court Decision 92Meu143 previously determined that consolation money proceedings should not be terminated. It is necessary to understand opinion of the Supreme Court correctly and to review these judgments. The Supreme Court Decision 92Meu143 dealt with a case where the plaintiff who asked for consolation money died. On the other hand, the Supreme Court Decision 2013Meu5495, 5501 concerned a case where the defendant died. It can be understood that the Supreme Court judges that termination of proceedings depends on whether the deceased party is the plaintiff or the defendant. However, doctrine of the Supreme Court does not show difference in facts. It makes to understand the view of the Supreme Court difficult and brings High courts and Family courts various judgments. The Supreme Court needs to express its opinion clearly on this issue. In my opinion, it is reasonable that consolation money proceedings should not be terminated regardless of party status. The rationale is as follows: content of Article 806(3) of Civil Law, intention of the plaintiff, the gist and counts of the consolation money claim, the protection for the rights of the plaintiff and successors, the right to claim consolation money is not created by divorce, and the fact that there is no provision of extinction of obligation in this case.