解除婚姻关系后再提婚姻无效之诉的实务考察 - 以中韩学说与判例比较为中心 -

After a marriage has been dissolved—whether by mutual agreement or through litigation—questions may arise as to whether a subsequent claim by one party to have the marriage declared null and void or annulled still holds substantive legal significance. The issue of whether the court should accept such a claim hinges on whether, and in what manner, the legitimate rights and interests of the party can still be remedied—an issue that continues to surface in real-life legal disputes in China. The prevailing judicial stance in China is that, once a marriage has been dissolved, courts generally do not support claims seeking confirmation of the marriage's nullity. Part II of this article introduces two Chinese court cases to illustrate how courts have handled such situations, and further examines the legal reasoning of Chinese scholars and practitioners who have argued against the rejection of annulment claims following the dissolution of marriage. In a Korean case involving a request for annulment of a marriage on the grounds that the marriage was defective, the Korean Grand Court held that even if a marriage has been dissolved by divorce, unless there are special circumstances, the parties still have a need for benefits and can apply to the court for annulment of the marriage. The controversy over this decision was twofold: whether it is meaningful to confirm the nullity of the marriage between the plaintiff and the defendant after the dissolution of the marriage for the marriage that once existed in the past, and whether the previous 82므67 decision of the Grand Court, which held that it is meaningless to confirm the marriage that has already been divorced, should be changed. The Korean Grand Court ultimately held that since many legal relationships are formed on the premise of marriage, requesting the annulment of a marriage may be an effective and appropriate way to resolve the relevant disputes once and for all. Therefore, the significance of recognizing the request for annulment should be considered even in cases where the marriage has been dissolved by divorce. Previous Korean jurisprudence, contrary to the above view, held that “a request for recognition of the nullity of a dissolved marriage is a confirmation of a past legal relationship, and such a nullity claim is meaningless.” The current judgment of the Korean Grand Court has changed the above jurisprudence. In the third part of the paper, the factual relationship of the case is firstly described, then the opinions of the first and second instance courts and the points of contention of the case are explained, and finally, the significance of the judgment of the Chancellor of the Grand Court and the relevant jurisprudence are described. Part IV of the paper presents a comparative analysis of Korean and Chinese legislation and jurisprudence. In terms of statutory comparison, the Korean Civil Code is considered to provide more specific and detailed grounds for the nullity and annulment of marriage. Notably, Article 815(1) of the Korean Civil Code, which addresses the “failure to form a marital agreement,” offers a legal basis for recognizing the invalidity of a marriage—thus providing hope for individuals seeking such recognition. From a jurisprudential perspective, it appears that Chinese courts, even when legal grounds exist to declare a marriage null and void or to annul it after its dissolution, tend to reject such cases. These rejections are often based on procedural grounds—such as the case falling outside the court’s jurisdiction or being considered a duplication of litigation—which effectively denies the parties access to judicial relief. In contrast, the Korean Supreme Court reevaluated its legal interpretations and revised its earlier stance to provide a new judicial approach that better safeguards the rights and interests of the parties. In this respect, Korea’s legislative framework and judicial reasoning may offer valuable reference points for China.