사실혼 배우자의 부정행위 상대방에 대한 손해배상청구권 - 일본의 학설과 판례의 동향을 중심으로 -

Abstract

The Japanese Supreme Court's Decisions before World War II, which recognized the legal spouse's claim for damages against the counterpart of cheating in Japan, has long been accepted without any opposition. However, in 1979, Japan's Supreme Court ruled that if the marriage had already broken down, the claim for alimony against the counterpart of cheating was restricted. Around this time, scholars raised questions about holding the third party, the counterparty, responsible for the spouse's cheating. Literature has been argued to limit claims for damages against the counterpart of cheating. In recent years, the view of limiting or denying the responsibility of a third party, which is the counterpart to cheating, has become dominant. In Japanese practice and theory, discussions on the validity of claims for damages against the counterparty of cheating by the marriage spouse are abundant, but this is only applied to de facto marriage by legal analogy. There was no discussion on the problems of de facto marriage. Therefore, while overviewing the traditional de facto marriage law, it was reviewed whether it was necessary to acknowledge the claim for damages against the counterparty of cheating by the de facto marriage spouse in the modern transition of the de facto marriage protection rules. As a result, it is not necessary to exclude the will of the parties who formed a de facto marriage on the condition that they do not interfere with each other's privacy, including sexual relations, being different from legal marriage, and applying the law of claiming damages to the other party of cheating to de facto marriage cannot avoid the concern of overprotection or overintervention. Since it is necessary to form flexible de facto marriage protection rules (protection of interdependent co-living relationships) suitable for the practice of various new types of marriage, it is difficult to recognize sexual integrity as is recognized by the legal marriage's. Therefore, at least the claim for damages against the counterpart of the cheating act of the de facto marriage spouse must be denied.