제3자에 대한 이혼위자료청구권과 소멸시효 ―대법원 2021. 6. 24. 선고 2017므13586 판결의 평석―

Abstract

Recently, a 2nd trial court found that the right to claim for damages resulting from an adultery to the person engaged in a sexual relation with a married person shall lapse by prescription if not exercised within three years commencing from the date on which the injured party becomes aware of such adultery and of the identity of the person who caused it. Furthermore, the court dismissed the claim of the plaintiff on the ground that the claim of the plaintiff had expired due to the extinctive prescription. The Supreme Court rendered a judgment dismissing the appeal to the effect of accepting the trial court without any separate legal explanation. The main purpose of this article is to point out the problem of the judgment of the above court regarding the starting point of the extinctive prescription of the right to claim alimony for divorce against a third party. Liability for damage due to infidelity itself is different from the liability for alimony in cases where the breakup of the marriage relationship or divorce occurs due to the infidelity, in view of the contents of the provisions of the Civil Act and the Family Litigation Act, and the difference of the causes and damages of each liability. The starting point of the extinctive prescription of the right to claim for alimony for divorce should be regarded as the time of dissolution of the marriage (or when the divorce is established). The 2nd trial court's argument that the extinctive prescription of the right to claim for alimony for divorce has been completed is not an argument for the extinctive prescription itself, but an argument for whether it is appropriate to acknowledge the liability for alimony for divorce to a third party. On the other hand, whether or not the right to claim alimony for divorce against a third person is acknowledged requires a separate review. It is difficult to generally recognize the right to claim alimony for divorce against a third party. The reason is as follows. First of all, the liability for compensation for alimony due to extreme mental anguish suffered by a victim spouse due to the involvement of a third party in cheating can be acknowledged through the exercise of the right to claim for cheating itself in a civil court not a family court. Secondly, it is difficult to uniformly admit a causal relationship between temporary or short-term cheating and divorce. The establishment of divorce is the result of a decision based on the free will of the couple concerned. A third party who participates in cheating violates the contractual relationship between the victim and the offending spouse. Nevertheless, if a third party urges the victim spouse to divorce by threats or coercion, or if the third party maintains a de facto marital relationship with the spouse at fault until the judicial divorce is established(if there are special circumstances where it can be seen that the third pary has an intention to break up the marriage relationship of the other person), the third party's liability for alimony for divorce must be acknowledged.