이혼에 따른 손해배상청구에 관한 실무상 문제점에 대한 고찰

Abstract

Many divorce by trial-related cases are consolidated with claims for damages filed against the spouse and a third person responsible for divorce. This article focuses on some practical questions arising from divorce suits involving claims for damages. When a divorce by trial takes place, the court should determine a person mainly responsible for the divorce–husband or wife, even in a case where both of them are to some extent responsible for the divorce. A spouse who is mainly responsible for divorce would take responsibility for compensation of other spouse’s damages. The damages would not count only if there is an implied set-off agreement between spouses or damages related to the spouse who is responsible for divorce is non-existent. The damages that the spouse and a third person responsible for divorce should compensate is equivalent because they are joint tort-feasors. Furthermore, the tort that either spouse or a third person committed to the other spouse constitutes a liability for damages, even in a case where the tort did not directly cause the divorce. The liability for damages by a tort and the liability for damages of divorce constitute different matters of lawsuits.