잔존배우자의 재혼과 실종선고의 취소

Abstract

Article 27 of Korea Civil Code provides for the Judicial Declaration of Disappearance: (1) If it is uncertain for five years whether an absentee is alive or dead, the court shall, on the application of any person interested or of a public prosecutor, make a judicial declaration of disappearance. (2) The provisions of the preceding paragraph shall also be applicable where the survival or death of a person who was on a battlefield, aboard a sunken vessel or a downed aircraft, or encountered any other peril that might be a cause of death, is not known distinctly for one year after the termination of the war, the sinking of the vessel or the crash of the aircraft, or the end of any other peril. And, Article 29(1) states annulment of judicial declaration of disappearance. If it has been proved that a person against whom a judicial declaration of disappearance has been made, is alive or dead at a time different from that specified in the Article 28, the court shall, on the application of the person himself, any person interested, or a public prosecutor, annul the judicial declaration of disappearance. But such annulment shall not affect the validity of “acts done in good faith, after the judicial declaration of disappearance and prior to its annulment[Art. 29(1)].” It has been argued that the language of 29(1) quoted above shall be applied to remarriage of the missing person’s spouse after judicial declaration of disappearance and prior to its annulment. This paper supports the position that the quoted language should be applied to the remarriage of the spouse. Since the parties of remarriage should be presumed in good faith, the returned missing person being declared annulment of judicial declaration of disappearance, might show one of the parties of remarriage not in good faith when they married. Even though one of the parties of remarriage were not in good faith when they married, the marriage may be bigamy but not crime for Korean Civil law purpose. In the case of bigamy, a claim for annulment of the marriage to the court may be made by claimant such as either party, the spouse, the lineal ascendants, the collateral blood relatives within the fourth degree of relationship, or a public prosecutor(Article 818). This paper also points out followings. To the purpose of bigamy caused by annulment of judicial declaration of disappearance, there is no provision about periods to claim annulment of bigamy and, article 818 provides too wide claimants of annulment.