출산경력의 불고지와 혼인 취소 사유 ―대법원 2017. 5. 16. 선고 2017므238 판결―

Abstract

This article, the comments on Korea Supreme Court Decision on May 16th 2017, Case No. 2017Meu238, treats the issue on ‘whether concealment of past childbirth history involves fraud sufficient to cancellation of marriage’. In the case, the wife, Vietnamese marriage-immigrant woman, had experienced childbirth in former forced marriage by means of kidnap, rape, and imprisonment at the age of 13, which is not known to her husband. When the marriage was broken up due to the repeated sexual abuse of the father-in-law and the woman filed for divorce, her husband found the past childbirth history of the wife in criminal conviction of her father-in-law, and filed a counteraction for cancellation of marriage arguing that her concealment of past childbirth history constitutes fraud and cancellation of marriage shall be granted on Korean Civil Act article 816(3). Korean Supreme Court had ruled on its decision on February 18th 2016, case No. 2015Meu654, 661 that the concealment of childbirth history, which has been caused by rape on her minority, cannot be regarded as fraud and the woman did not have a duty to inform the history to her husband when marriage. However, in the case, Korean High Court (the original court) which has been remanded the case, granted cancellation of marriage, on the reason that newly investigated facts show that her past childbirth has been caused not by “rape on her minority”, but “her marriage”. This decision was finally affirmed by Korea Supreme Court. This article argues that concealment of past childbirth history itself, whether it was caused by rape on minority or not, shall not be a ground of marriage cancellation, as the past childbirth history cannot be ‘the essential elements of marriage’. This article further argues that the forced marriage by kidnap or rape on minority should not be regarded as “marriage”. Thus this article reaches the conclusion that Korea Supreme Court’s final decision in the case should be criticized and reconsidered.