[이혼등] 항소[각공2021상,141]
In a case where Party A and Party B, who got a child born from their own inter-party marriage, were divorced and remarried, and then the child’s surname was changed to Party B’s surname and the family name was followed, and Party B claimed a divorce against Party B, and the marriage relationship was broken down due to the detention, verbal abuse, etc. of Party B, the case holding that it is difficult to conclude that Party A’s relationship with Party B reached a failure to recover any longer in light of all the circumstances.
After Gap and Eul's children who were born from their own marriage, Gap and Eul got married, they changed Gap's children's surname and origin to Eul's surname, followed thereby, and changed Gap's surname and origin to Eul's own surname, and Gap claimed a divorce against Eul due to detention, verbal abuse, etc.
The case holding that it is difficult to conclude that the relationship between A and B has reached a failure to the extent that it can no longer be recovered, in light of the following: (a) the evidence submitted by A alone cannot be recognized as binding and verbal abuse against B; (b) the married couple should make best efforts to maintain the marital life and to overcome the disability during the marital life; and (c) it is necessary for A to play a role as a result of the performance of B’s children’s her her her her her her her her her her her her her her her her her her her her her her her her her her her
Articles 826(1) and 840 subparag. 6 of the Civil Act
Plaintiff (Law Firm Newcheon, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm Goun, Attorneys Seo-eat et al., Counsel for the defendant-appellant)
September 9, 2020
1. All of the plaintiff's claims are dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The plaintiff and the defendant shall be divorced. The defendant shall pay to the plaintiff 20,000,000 won with 12% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment, and shall pay 33,278,923 won as division of property.
1. Facts of recognition;
A. The Plaintiff (the Plaintiff was 1 South and North Korea) and the Defendant (the Defendant was 1 South and North Korea) did not have a child under the chain of law, which had completed the marriage report on February 13, 2017, at the Kafin meeting around 2016 (Kafin omitted) or at the Kafin meeting around 2016.
B. The Plaintiff and the Defendant began to live a new marry with their children in Suwon, and around July 2017, the Plaintiff and the Defendant changed the Plaintiff’s surname and origin of the Plaintiff’s children’s surname to the Defendant’s actual surname and changed the Plaintiff’s name accordingly.
C. While the Plaintiff had a reasonable complaint against the Defendant due to the Defendant’s strong attitude in marriage and detention against the Plaintiff, the difference in the method of raising children, and the strong marital relationship, the Plaintiff had a reasonable objection against the Defendant. However, the Plaintiff was not explicitly expressed the above complaints to the Defendant, but rather was able to be referred beyond the reference.
D. Around December 2019, the Plaintiff argued as a matter of meals with the Defendant and the Defendant, and thereafter, the Plaintiff used the Defendant and the Defendant respectively, left their children, left their homes, and went to a friendly family in booming. Since then, the Plaintiff and the Defendant are still on a separate basis until now.
[Based on recognition] Evidence Nos. 1 through 4, family investigation report prepared by family investigation officers, purpose of the whole pleadings
2. Judgment on the plaintiff's claim for divorce
A. Summary of the plaintiff's assertion
Since the marriage relationship has occurred due to the detention, verbal abuse, assault, discrimination against children, and strong marital relationship against the plaintiff, etc., it is necessary to divorce with the plaintiff pursuant to subparagraphs 3 and 6 of Article 840 of the Civil Code.
B. Determination
1) Determination on the grounds for divorce under Article 840 subparag. 3 of the Civil Act
Article 840 subparagraph 3 of the Civil Act, "when one has been extremely maltreated by his/her spouse or his/her lineal ascendant" refers to cases where he/she received violence, abuse or insult to the extent that compelling the continuation of a matrimonial relationship would be harsh (see Supreme Court Decision 9Meu180 delivered on Nov. 26, 199, etc.).
However, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was subjected to the above-mentioned unfair treatment from the Defendant, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s above assertion is not acceptable.
2) Determination on the grounds for divorce under Article 840 subparag. 6 of the Civil Act
The term "if there is any other serious reason why it is difficult to continue the marriage", which is the cause of divorce as stipulated in Article 840 subparagraph 6 of the Civil Code, means the case where the communal living relationship corresponding to the essence of the marriage which should be based on difficulties and trust between the married couple, has been broken down to the extent that it is impossible to recover and compelling the continuation of the marital life would result in an unreparable pain for one spouse.
However, marriage is a combination of moral and continuous parties whose purpose is to lead a common life of both men and women on the basis of the difficulties of both men and women, and there is a duty to live together, support and cooperate with each other (Article 826(1) of the Civil Act). Thus, in the course of married life, married couple shall make their best efforts to maintain their marital life by understanding, protecting, and protecting the other party through patriotism, good faith and personality. Even if there are cases where there are many circumstances that may hinder the marital life, the couple shall make every effort to overcome such trouble (see Supreme Court Decision 97Meu612 delivered on February 12, 199).
As to the instant case, the Plaintiff has the ability to avoid divorce until now since the filing of the lawsuit. However, there is no conflict or dispute between the couple and all of the married couple, overcomes conflicts, and live together. In the case of the Plaintiff and the Defendant, it is very difficult for the Plaintiff and the Defendant to overcome the difference and live together with each other, and there was such difficulty. The Plaintiff had already experienced divorce, and as a matter of course, it is difficult for the Plaintiff to predict the suffering or conflict that the Plaintiff had experienced in the marital life with the Defendant. However, it is difficult to readily conclude that the Plaintiff might have suffered pain during the marriage life to the extent that there was experience in suicide. Nevertheless, as long as the Plaintiff transferred to the Defendant’s performance, it is difficult for the Plaintiff to take advantage of his or her previous marital relationship with the Plaintiff and his or her children, and thus, it is difficult to recognize the Plaintiff’s right to cooperate with the Plaintiff and his or her reliance in the marriage and the Defendant’s right to cooperate with the Defendant, and thus, it is not possible to recognize the Plaintiff’s right to cooperate with the Plaintiff and the Defendant.
C. Sub-committee
The plaintiff's claim for divorce is groundless.
3. Judgment on the remaining claims of the plaintiff
As long as the plaintiff's claim for divorce is not accepted, the plaintiff's claim for consolation money and the claim for division of property against the defendant under the premise that the claim for divorce is accepted cannot be accepted without further review.
4. Conclusion
If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.
Judges New Number of Days