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(영문) 대구고법 1978. 6. 16. 선고 77르49,50 제1민사부판결 : 확정

[약혼해제로인한손해배상청구사건][고집1978특,369]

Main Issues

Any person entitled to claim damages due to the dissolution of a matrimonial engagement and the claim for restitution.

Summary of Judgment

The expenditure of expenses for marriage made by the claimant Gap, the father of the claimant Gap, the party to the matrimonial engagement, shall be deemed to have been made for the party Gap as the party to the marriage. Therefore, the right to claim compensation for property damage suffered by the dissolution of the matrimonial engagement or the right to claim compensation for the deposited property shall belong to Gap who is the party to the matrimonial engagement, and the right to claim compensation for the damages

[Reference Provisions]

Civil Code No. 806

Claimant, Appellee, appellant

A and one other

appellee, appellant, appellee, appellee

B and one other

Judgment of the lower court

Daegu District Court of First Instance (Law No. 77D. 39,51)

Text

1. The part against the claimant, etc. who orders payment as referred to in paragraph (2) and the part against the claimant, etc. concerning an appeal against the complaint shall be revoked from among the part concerning the principal appeal against the original adjudication; and

2. The respondent, etc. shall jointly and severally pay 230,000 money to the appellant A and 100,000 won to the appellant C.

3. All appeals filed by an appellee, etc. and other appeals filed by an appellant, etc., which fall under the part revoking the above, shall be dismissed.

4. The portion concerning a request for a formal trial from among the costs of lawsuit shall be divided into three parts, and such two parts shall be borne by the appellee, etc., the remainder by the appellant, etc., and the part concerning a request for a second trial from the appellee, etc. by the appellee, etc., and by the appellee, etc. of the second instance.

5. Provisional execution may be effected only under paragraph (2).

Purport of claim

The appellant(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s) and(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)

The adjudication costs shall be tried for a declaration of adjudication and provisional execution at the expense of the claimant, etc.

Purport of appeal

The part of the original adjudication against the claimant, etc. shall be revoked.

The respondent, etc. shall be dismissed.

The costs of lawsuit are the same as the entries in the purport of this trial, except for the attitude of the part to be borne by the respondent, etc. in both the first and second trials.

Reasons

(1) The main appeal and the appeal are examined together.

(A) According to the evidence Nos. 1, 2, 68, 9, 10, 12, 13, and evidence Nos. 1, 12, 13, and No. 1,2, 3, and 4, the claimant A and the respondent B were engaged in a matrimonial engagement on February 10, 197, and the respondent, etc. was dissolved on February 10, 197, and the respondent was the father of the claimant A and the respondent D was the father of the claimant, and the respondent D did not have any counter-proof.

The appellant, etc. alleged that the appellee was liable for damages suffered by the appellant, etc. due to the destruction of the above matrimonial engagement by unilaterally cancelling the above matrimonial engagement without any reason, namely, the appellee, etc., and the appellee, etc., was not liable for an appeal against the ruling of the court below. Although the appellant, etc., as an appeal against the ruling of the court below, the appellant, etc., is the remaining head of eight South Korea where the parents are gathered, and the monthly salary is 50,000 won after graduating from the national school, and it is difficult for the appellant, etc. to live, the appellant, etc. and E, other than the claimant, who concealed the above matrimonial engagement, graduated from the Samsung Industrial High School and made the defendants believe that the appellee, etc. was the executive members of the Matrimonial Co., Ltd. as well as the above 120,000 won, and the appellee, etc., knew the defendant's new Matrimonial engagement for reasons attributable to the defendant, etc., and thus, the appellee's testimony or testimony is justified.

Therefore, the conclusion of the conclusion of the conclusion of the conclusion of matrimonial engagement in this case is that the defendant, etc. did not fully confirm the surrounding matters confirmed by the parties prior to the formation of the conclusion of the conclusion of matrimonial engagement, such as the defendant's educational background, career, occupation, property status, and family relation of the parties A, but thereafter, the respondent was reversed under the name of the defendant, etc. on the ground that the appellant was not just a party to the conclusion of the conclusion of the conclusion of the conclusion of the conclusion of the conclusion of matrimonial engagement in this case. Thus, it is not reasonable to judge the remainder of objections by the defendant, etc. on the ground that the appellant was not a party to the conclusion of the conclusion of the above conclusion of the conclusion of matrimonial engagement in this case, and there is no reason to judge the remainder of objections by the defendant, etc. on the ground that the appellant was responsible for the dissolution of the above conclusion of the conclusion of matrimonial engagement in this case.

(B) The claimant C asserts that the claimant Gap's above matrimonial engagement will be performed through marriage and sought compensation for damages to the above party by making an expense of 645,00 won in total, which is 645,00 won of mixed trees, expenses for purchasing tugboats, food expenses, etc., and thus, according to the statements in Gap's 3,45,05 and the witness I, J,K, and L, the above amount of the matrimonial engagement after the formation of the matrimonial engagement agreement on the 28th day of the same month, and accordingly, the claimant C paid money of 228,40 won for the purchase cost of the married products. However, the claimant C is deemed to have made for the claimant A, who is a party to the matrimonial engagement, the above claimant's right to claim compensation for property damage caused by the dissolution of the matrimonial engagement or right to claim the return of the prepayment belongs to the claimant, which is the party to the matrimonial engagement, and thus, the claimant's assertion of the above claimant C cannot be justified.

(다) 나아가 위에서 인정한 바와 같이 피청구인등이 혼인을 불과 7일 앞두고 일방적으로 위 약혼을 파기함으로 인하여 당사자 사이에 혼인이 이루어질 것으로 기대하던 청구인 A가, 약혼후 혼인일자까지 정하고 혼인을 위하여 돈 228,400원을 지출하여 혼수, 예물을 구입하였고, 8남매를 낳아 피청구인 B를 맏아들인 청구인 A의 배우자로 맞아드리고자 기대하던 청구인 C로서도 심한 정신적 고통을 당하였을 것임이 경험칙상 인정되는 바이고(대법원 1975.1.14. 선고 74므11판결 참조), 나아가 그 액수에 관하여 보건대, 위에서 인정한 이사건 약혼과 그 파기에 이르게 된 경위와 당사자들의 신분관계, 그 외에 이사건 변론에 나타나는 당사자들의 학력, 연령, 재산상태등 일체의 사정을 참작할 때 이사건 위자료로서는 청구인 C에게 돈 100,000원, 청구인 A에게 돈 230,000원으로 정함이 상당하다.

(2) If so, the respondent et al. is jointly and severally liable to pay 100,00 won to the claimant C et al., and 230,000 won to the claimant A., the main appeal by the claimant et al. shall be accepted within the scope recognized above, and the remainder shall be dismissed as it is proper to the extent recognized above. The part against the claimant et al. and the part against the claimant et al. among the part concerning the main appeal by the plaintiff et al. which is ordered to pay under Paragraph 2 of the main appeal by the plaintiff et al. shall be dismissed as well as the part against the plaintiff et al. among the part concerning the main appeal by the plaintiff et al. shall be dismissed as above. The appeal by the claimant et al. shall be revoked as well as the payment order by the plaintiff et al. shall be dismissed as well as the appeal by the plaintiff et al. for the remaining appeal by the claimant et al. and the part concerning the above revoked. As to the cost of lawsuit, Article 9 of the Family Trial Act shall be applied to Article 29 of the Civil Execution Act.

Judges Kim Ho-young (Presiding Judge)