부정행위에 따른 위자료의 산정에 관한 실무상 몇 가지 문제에 관하여

Abstract

If one of the couple in a marital relationship commits adultery, regardless of whether it leads to divorce or not, the calculation of alimony often becomes the biggest legal problem. In particular, since the Constitutional Court of the Republic of Korea ruled criminal punishment of adultery unconstitutional, claims for alimony on the basis of adultery became the only legal sanction against adultery. In this context, this paper attempted to consider some practical problems in calculating alimony. First, the statistical analysis of the calculation of alimony resulting from adultery before and after the abolition of the criminalization of adultery confirmed that the amount of alimony did not change significantly, but rather decreased, and that the criteria for calculating alimony were presented in abstract terms. Second, the tendency of calculating the amount of alimony differently for the parties to adultery, i.e., the claimant’s spouse and his or her partner, was examined. While the parties involved in extramarital affairs are joint tortfeasors, the calculation of the amount of alimony demonstrates a clear tendency of differential treatment of the two. Such discriminatory calculation could be justified in light of the recent Supreme Court rulings and the attempts to individualize joint tort liability. However, even in such case, it is not appropriate to cite the possibility of exercising the right of reimbursement between joint tortfeasors as the grounds for differential calculation of alimony between the spouse and his or her partner. Finally, when a spouse commits adultery with many partners, it is common in practice to identify responsibilities for damages among the partners as an individual tort liability, but in this case, it is reasonable to consider that the spouse and the partners assume joint tort liabilities depending on their contribution to divorce and whether the extramarital encounters overlapped in time.