Reducing Compensation & Reimbursement Claims

If you knew they were married when you met, it is hard to avoid liability itself. In that case, the approach is to show with evidence that the amount the plaintiff claims is too large for the circumstances of the case. The court looks at the length of the relationship, how often you met and how deep the relationship was, the effect on the marriage, and your attitude afterward.

If the relationship was short and you cut off contact right after it came out, records showing that date are the most important. The fact that the plaintiff couple had long-standing conflict before the affair may also be considered, but using it to blame the plaintiff backfires, so it should be handled only with objective evidence.

• The length of the relationship and how many times you actually met
• The date you ended the relationship and the fact there has been no contact since
• Objective evidence of the plaintiff couple's conflict before the affair
• A written apology delivered to the plaintiff
• A promise not to make contact again

If the plaintiff took private revenge, such as causing a scene at the affair partner's workplace or posting the facts on social media, the suffering this caused the defendant may be considered when setting compensation. If the plaintiff is separately accused of defamation (명예훼손) or threats (협박), the case becomes more complicated.

Plaintiffs should also be careful about saying themselves that their marriage ended long ago. The affair partner will use those words to argue that the marriage had already broken down. Records of the plaintiff sending the affair partner sympathetic messages, such as "You must have been deceived too," are sometimes used against the plaintiff when the amount is set.

Infidelity (부정행위) is a tort committed jointly by the spouse and the affair partner. The two are jointly and severally liable to the plaintiff, and between themselves each has a share. If one pays more than their own share, they can claim the excess from the other; this is called the right to reimbursement.

If the affair partner paid all of the compensation, we look at whether they can claim reimbursement from the plaintiff's spouse. However, if the court views the compensation it awarded as falling within the affair partner's own share from the start, reimbursement may not be accepted. The terms of the judgment or mediation and how much the spouse led the relationship must be looked at together.

If you sue only the affair partner without divorcing, and the affair partner then claims reimbursement from your spouse after paying, that money ultimately comes out of your own household. In effect, you hand back part of the compensation you received.

A judgment only decides whether to award compensation and how much; it does not settle the reimbursement issue. So a plaintiff who stays married should consider including, when ending the case through mediation or settlement, a clause that the affair partner will not claim reimbursement or any other money from the spouse. Getting this clause sometimes requires a concession on the amount, so the amount and the clause are decided together.

If you think the first-instance award is excessive, you must appeal within 2 weeks of being served with the written judgment. On appeal, we go through the reasons in the judgment one by one to see what circumstances the first instance relied on to set the amount, and fill in missing circumstances or wrongly found facts with new evidence.

If the first instance proceeded by service by publication (공시송달) and you didn't even know a judgment had been entered, we look at whether you can file a late appeal (추후보완 항소) within 2 weeks of the day you learned of it (Civil Procedure Act Article 173). The period is short here as well, so you need to move quickly.