인적 혼인의무 위반 시 손해배상청구 인정에 대한 비판적 검토

Abstract

The Civil Code stipulates that there are marital obligations between spouses (Civil Code Article 826, Paragraph 1). Because marital obligations are the basis of married life, violating them can place the marital relationship at risk of breakdown. When marital obligations are violated, one party can demand the other party to fulfill them. However, personal marital obligations cannot be enforced, and unlike property-related marital obligations, there are no enforcement provisions for personal marital obligations in the Family Litigation Act. Ultimately, if the couple cannot find a common ground due to one party’s violation of marital obligations, they may end up divorcing, and the innocent spouse can claim divorce compensation (Civil Code Articles 843, 806). In Korea, it is possible to claim damages for the violation of personal marital obligations not only at the time of divorce but also during the marriage. However, this paper critically examines the allowance of damage claims for the violation of personal marital obligations during marriage, considering it as state intervention in married life and a threat to the autonomy of the marital relationship. In Germany, liability for damages due to the violation of personal marital obligations is not recognized. This paper examines in detail the specific rulings of the Imperial Court of Justice and the Federal Court of Justice of Germany, as well as the discussions during the drafting of the German Civil Code. Additionally, the paper reviews current laws, precedents, and theories related to this issue, discussing the legal problems in Germany, where torts between spouses are not recognized. Germany has a provision that personal marital obligations cannot be enforced, and even under the fault-based divorce law at the time of the drafting of the German Civil Code, monetary damage claims between spouses were not permitted. This is because recognizing damage claims based on torts under the law of obligations in the context of personal marital obligations does not consider the uniqueness of family law and regards marriage as merely a financial transaction, which is not consistent with the essence of marriage. The marital relationship is conducted within the intimate realm of the couple, so the state should not act as a supervisory body of the marital relationship. Moreover, since personal marital obligations pertain to individual personality, they must be fulfilled through the spouse’s actions, and they cannot be substituted with money or other means. Therefore, judicial control or sanctions have no place in the internal, highly personal domain of marriage. Modern marriage and divorce laws respect individual autonomy and the autonomy of the couple’s decision-making more than ever. Individual dignity means the individual’s free decisions and mutual autonomy between spouses, and the state must guarantee this. Therefore, this paper examines the issue from the perspective that legal sanctions for the violation of personal marital obligations should be minimal and left to the autonomy and ethics/morality of the parties involved.