CONTENTS
- 1. Overview of the Lawsuit Against the Spouse's Affair Partner
- 2. First-Instance Determination in the Lawsuit Against the Spouse's Affair Partner
- - Second-Instance Determination in the Lawsuit Against the Spouse's Affair Partner
- 3. The Supreme Court's Determination on the Lawsuit Against the Spouse's Affair Partner
- - Significance of This Decision
- 4. Daeryun's Strategy Regarding the Lawsuit Against the Spouse's Affair Partner
1. Overview of the Lawsuit Against the Spouse's Affair Partner
This is a case in which the issue was whether, in a lawsuit against the spouse's affair partner, liability could be apportioned between the spouse who caused the breakdown of the marriage and the affair partner.
The Defendant engaged in an affair with A, the Plaintiff's spouse.
As the household broke down as a result, the Plaintiff not only sought a divorce against A but also, jointly against A and the Defendant, claimed consolation money of 50 million won for the breakdown of the marriage, together with delay damages thereon.
During the first-instance proceedings, however, a decision recommending settlement was issued between the Plaintiff and A, and the Plaintiff agreed to divorce A and to receive consolation money of 20 million won together with delay damages.
The Plaintiff therefore amended the purport of the claim so as to seek the remaining 20 million won and delay damages from the Defendant, the affair partner.
In other words, the Plaintiff's basic position was that the consolation money paid by the spouse amounted only to partial performance, so the affair partner would be held liable for the remaining portion.
2. First-Instance Determination in the Lawsuit Against the Spouse's Affair Partner
The lower court accepted the Plaintiff's argument.
The court held that the Defendant and A, as joint tortfeasors, bore a quasi-joint and several obligation to compensate consolation money of 40 million won in the first place.
Because A had already paid the Plaintiff 20 million won, the Defendant's obligation was extinguished to that same extent.
Accordingly, the court found that the Defendant was liable to pay the Plaintiff the remaining 20 million won and delay damages thereon.
▶Article 760 of the Civil Act (Liability of Joint Tortfeasors)
(2) The same shall apply where it is impossible to ascertain which of the acts of several persons not acting jointly caused the damage.
Second-Instance Determination in the Lawsuit Against the Spouse's Affair Partner
The appellate court reached the same conclusion.
It held that it was a matter of course for the Defendant, the affair partner, to bear liability as a joint tortfeasor, and that the amount already settled with the spouse amounted only to partial performance of the total compensation.
The affair partner therefore had an independent obligation to compensate to the extent of the remaining amount.
In other words, the court made clear that the affair partner is not discharged by the spouse's payment of the settlement amount.
3. The Supreme Court's Determination on the Lawsuit Against the Spouse's Affair Partner
In this lawsuit against the spouse's affair partner, the Supreme Court dismissed the affair partner's final appeal and affirmed the lower judgment.
▶Key Points of the Supreme Court's Determination
The lower court recognized an amount of damage greater than the amount claimed by the Plaintiff, but did not order payment exceeding the amount claimed.
It therefore held that there was no violation of the principle of party disposition, under which a court may not order more than the purport of a party's claim.
· Application of the Doctrine of Quasi-Joint and Several Obligations
The spouse and the affair partner, as joint tortfeasors, bear joint and several liability toward the Plaintiff for the same damage.
If A has already made partial performance, the Defendant's obligation is reduced to that extent, but liability remains as to the balance.
· Connection With Existing Precedent
The Supreme Court had already articulated a similar doctrine (Supreme Court, Decision of October 11, 1994, 94 Da 17710). This case reaffirms that doctrine.
Significance of This Decision
This decision carries the following significance for the practice of lawsuits against the spouse's affair partner.
1. Consolation Money May Be Claimed From the Affair Partner Even After a Settlement With the Spouse
The court made clear that, even where a victim of the affair has settled with the spouse for a certain amount, a separate claim for consolation money against the affair partner remains possible.
2. Application of Joint Tort and Quasi-Joint and Several Obligations
The affair partner and the spouse are jointly responsible for bringing about the breakdown of the marriage, and the victim may make a claim against either party. However, if one party pays a portion, the other party's liability is reduced to that extent.
3. Effect of Preventing Disputes in Practice
This precedent serves as a standard that clarifies the structure of claims in lawsuits against the spouse's affair partner. The victim can clarify the surviving scope of the claim, and the affair partner can likewise objectively grasp the scope of their own liability.
4. Harmonizing Legal Stability With Victim Protection
The Supreme Court strengthened victim protection while also ensuring legal stability by not departing from the principle of party disposition.
4. Daeryun's Strategy Regarding the Lawsuit Against the Spouse's Affair Partner
Drawing on this precedent, Daeryun Law Firm LLP offers the following strategies in lawsuits against the spouse's affair partner.
① Clarifying the Facts
Securing digital evidence such as text messages, KakaoTalk conversations, emails, and hotel access records through the Digital Forensics Center that collaborates with our firm is central to a lawsuit against the spouse's affair partner.
② Applying the Doctrine of Joint Tort
Using the characteristics of quasi-joint and several obligations, we advance arguments that broaden the scope of the victim's claim.
③ Securing a Basis for Calculating Consolation Money
Courts generally recognize consolation money of roughly 10 million to 30 million won, so concrete materials and comparison with precedents are needed in order to exceed or to defend against that range.
④ Defense Strategy
We may also argue that the affair partner was not the direct cause of the breakdown of the marriage, or establish that the victim's marital relationship was already in a state of breakdown.
Lawsuits against the spouse's affair partner involve complex legal doctrines, including the principle of party disposition, joint tort, and the scope of damages.
At Daeryun Law Firm LLP, attorneys experienced in divorce matters and civil matters collaborate and, through the Digital Forensics Center, analyze evidence precisely in order to maximize the rights and interests of clients.
This precedent reaffirms that, in a lawsuit against the spouse's affair partner, a claim against the affair partner remains separately possible even where the victim has settled with the spouse.
The victim can broaden the scope of relief for their rights, and the affair partner should clearly understand the scope of their legal liability.
If you need related assistance, you are welcome to arrange a 🔗legal consultation reservation with Daeryun Law Firm LLP.
