2017Dhap202725 (Counterclaim) Divorce and consolation money

2. The plaintiff (Counterclaim defendant)'s claim for consolation money against the defendant (Counterclaim plaintiff) is all dismissed.

3. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 499,00,000 won as division of property, and 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

4. The costs of lawsuit shall be borne by each person.

[Counterclaim] Paragraph (1) of Paragraph (1) of this Article and the plaintiff pay to the defendant 150,00,000 won as consolation money and 15% interest per annum from the day following the day of delivery of a copy of the counterclaim to the day of complete payment.

1. Facts of recognition;

A. The plaintiff and the defendant live together from around 1977 and completed the marriage report on May 22, 1981.

B. On August 16, 1982, the Plaintiff gave birth to the Plaintiff Byung, and Byung entered the Plaintiff’s birth on the family relation certificate as the mother of the Plaintiff and the Defendant’s father.

C. The Plaintiff and the Defendant had frequent disputes on the grounds that the Plaintiff was unaware of and unable to account in writing at the time of Smarket operation. The Plaintiff, when there was a dispute with the Defendant, he and she had a fluencing with the Defendant, and fluencing the Defendant. The Plaintiff got off two months by deducting KRW 20,000,000 in the Defendant’s passbook around the time when Byung was a high school student.

D. Around 1994, the Defendant lived with the Defendant for a period of three years, while the Plaintiff was also aware of the said work.

E. The Defendant went to the house on February 199, and the Plaintiff and the Defendant were living separately from that time until that time. The Defendant became aware of the introduction to employees of drinking water companies, and maintained de facto marital relationship with the Plaintiff from the time when the Plaintiff and the Defendant were living separately.

F. On June 23, 2016, the Defendant filed a lawsuit against Byung-si seeking confirmation of existence of paternity, etc. against the Busan Family Court (2016Ddan200244), and was sentenced to a judgment denying that Byung-si is the natural father of the Defendant on the grounds that the results of genetic assessment conducted by the Defendant and Byung are inconsistent. The foregoing judgment became final and conclusive on July 12, 2016.

[Ground of recognition] Each entry of Gap evidence Nos. 1, 2, 3, and Eul evidence Nos. 1 (including numbers for each item, the same shall apply to this subparagraph), family affairs investigator's report, and the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money

A. Claim for principal lawsuit and counterclaim divorce: Each of the reasons under Article 840 subparagraph 6 of the Civil Code is reasonable.

B. Claim of consolation money for the principal lawsuit and counterclaim: No reason exists.

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances should be taken into account, such as the fact that both the plaintiff and the defendant want a divorce in addition to the above fact of recognition, the plaintiff and the defendant are separate from February 1, 1999, and they are lost trust with each other, and there seems to be no possibility of continuing the marriage life in the future.

② The principal responsibility for the failure of the marriage is both parties, and the degree of the same is equal: the Plaintiff claims that the marriage relationship was broken down due to the Defendant’s assault, verbal abuse, and unlawful act; the Defendant is the Defendant’s child, and the marriage relationship was broken down due to the Plaintiff’s gambling, unlawful act, and illness. However, the Plaintiff and the Defendant seem to have committed a mutual misconduct during the period of marriage, and they seem to have impliedly infringed upon each other. From February 1999 to February 2, 1999, it appears that there was no actual substance of the marital life, such as the Plaintiff and the Defendant maintained a legal marital relationship, and it appears that the Plaintiff and the Defendant did not make any effort to improve the marital relationship or recover the marital relationship. As such, the principal responsibility for the failure of the marriage relationship is both parties, and the degree is equal.

3. Determination on the claim for division of property in the principal lawsuit

(a) Details about the formation and maintenance of property;

1) The Plaintiff and the Defendant leased the lease deposit amount of KRW 30,00,000, KRW 9,000, and began mixed life. The Plaintiff and the Defendant were engaged in the collection of Sick and alcoholic beverage wholesale in Busan Franchising area from around 1981 to around 1996.

2) On February 22, 1991, the Defendant purchased the land and building located in the Suwon-dong, Busan, and the land and building located in the Suwon-dong, Busan (hereinafter referred to as “the movable property of the deceased-dong”). On November 18, 2010, the Defendant sold the real property of the deceased-dong at KRW 140 million.

3) On November 14, 1994, the Defendant purchased the land and buildings located in Busan Shipping Daegu-ro in the amount of KRW 160 million by adding up the amount of money collected and the amount of KRW 50 million loans to community credit cooperatives. On September 5, 2003, the Defendant completed registration of preservation of ownership of the said building (hereinafter referred to as “the said land and buildings together”).

4) In around 1994, the Plaintiff operated Smarkets in the real estate in the return 1994. In around 1997, the Defendant began to operate Smarkets by investing the amount of KRW 20 million with a definition of KRW 40 million and the Defendant’s money of KRW 40 million. At that time, the Plaintiff paid KRW 50,000 of the loans of the real estate that was returned to the Plaintiff at that time. The Plaintiff appropriated the Defendant’s daily living expenses after the Defendant was on the water, such as water supply, air disease sale, intra-school restaurant, frequency collection, and construction work, etc. The Plaintiff operated the State house in the Busan Gyeong-gu Shipping in order to around 2006, and from around 2009, the Plaintiff was working for Swinbing with the real estate in the real estate that was returned without the lease deposit.

5) On June 14, 2006, the Defendant purchased an apartment house located in the Busan Seoyang-gu, Busan. On December 6, 2013, the Defendant purchased the land located in Seoyang-si with KRW 200 million, but sold the said real estate at KRW 230 million on October 28, 2017.

6) The Defendant joined the ○○○○○○○ (hereinafter referred to as “○○○○”) and worked as a liquor seller. From October 5, 1999 to December 13, 2005, the Defendant purchased the shares of the land and buildings located in the Gambling-gu, Busan (hereinafter referred to as “Gambing-dong real estate”) in the aggregate of KRW 9880,000,000 and operated the ○○○○○○○○○○○○○○ upon acquiring the shares of ○○○○○○○○○○○○○○. The Defendant discontinued the ○○○○○○○○○ upon revocation of a liquor license around April 23, 2018. The Defendant sold the Gambing-dong real estate in the amount of KRW 120,000,000.

7) On October 7, 2010, the Defendant: (a) deposited the land located in the Geumcheon-gu, Busan Metropolitan Government with KRW 7440,700,000; (b) completed the registration of ownership transfer in the name of the Defendant with respect to the share of KRW 1321,167; and (c) completed the registration of ownership transfer in the name of Byung with respect to the share of KRW 354,167,35. The Defendant completed the registration of ownership transfer in the name of Byung on January 12, 201.

8) On November 12, 2013, the Plaintiff acquired the Plaintiff’s share of KRW 24,00,000, and KRW 000,000, in the name of the limited partnership company, △△△△△△△ (hereinafter “△△△△△”) in the name of Byung, and changed the Plaintiff’s name as the general partner company, and the general partner and the representative member. On January 22, 2014, the Plaintiff transferred KRW 26,00,000,000 to the △△△△△△△△△△△△△, a general partner, in the name of Byung, KRW 26,00,000, and on January 20, 2015, the Plaintiff transferred KRW 1,550,000,000 to the new person.

9) The Defendant filed a lawsuit against the Changwon District Court for a claim for the registration of change of limited partnership company employees, etc. (hereinafter “△△△△△△△△△”) with the Changwon District Court (hereinafter “Seoul District Court”). On December 9, 2016, the said court rendered a judgment that determined that a title trust agreement was made between the Defendant and Byung on the share of △△△△△△△△, thereby confirming the Defendant’s ownership of the △△△△△△△△△△△△△△△△△△△△, and that the △△△△△△△△△△△△△ was acting as the Defendant on December 27, 2016, and the said judgment became final and conclusive on September 28, 2017. The Defendant sold all equity shares in the △△△△△△△△△△△△△△△△△△△△△ in its name.

10) From September 1, 2017, the Defendant purchased the shares of △△△ Co., Ltd. from around September 1, 2017, and gained profits from operating a business with the representative of △△△. On August 31, 2018, the Defendant transferred KRW 30,000,000,000 to 15,990,000,000 won per common share of △△△△ Co., Ltd.

[Grounds for Recognition] The evidence mentioned above, Gap evidence Nos. 4 through 13, Eul evidence No. 2, the family affairs investigator's report, and the purport of the whole pleadings

(b) Property and value to be divided;

1) The time of the marriage dissolution: It is difficult to view that the plaintiff and the defendant were separated from February 1, 1999, and they maintained a married couple's marital relationship after the separation, so it is reasonable to view that the marriage between the plaintiff and the defendant was broken down on February 1, 199, when they were living separately.

2) The criteria for the calculation of the property subject to division: The property subject to division due to a judicial divorce and its amount shall be determined on the basis of the date of the closing of arguments at the fact-finding court in a divorce lawsuit (see Supreme Court Order 2000Du13, May 2, 2000). In addition, even if one spouse acquired the property after separation, if it is based on the tangible and intangible resources formed by mutual cooperation between the parties before separation, it shall be subject to division of property (see Supreme Court Decision 196Meu1397, Jun. 11, 199).

In light of the fact that the Plaintiff and the Defendant were engaged in the business of collecting and wholesale alcoholic beverages during the marriage period, even after the stay, the Defendant continued to engage in the above alcoholic beverage wholesale business, the Plaintiff earned income by making a considerable period of time during the marriage life and prepared living expenses, and contributed to the family economy by making household affairs and child care. The Defendant acquired most of the real estate acquired during the marriage period, but it appears that the real estate acquired during the marriage period and returned home was the basis for the increase of property, the property acquired after the separation of the Plaintiff and the Defendant is also deemed to have been the basis for the joint property relationship between the Plaintiff and the Defendant during the marriage life, and therefore, the subject and value of the re-division shall be determined as of the date of closing argument in this case. However, in cases where the Plaintiff and the Defendant make a contribution to the value thereof under the agreement with each other, it shall be governed.

3) Property to be divided: as shown in the annexed sheet of statement of property to be divided.

4) The value of the property to be divided;

A) Plaintiff’s net property: 1,000,000 won

B) Defendant’s net property: 3,332, 708, 336 won

C) the aggregate of the net property of the original and the Defendant: KRW 3,333,708,336

C. Judgment on the parties’ assertion

Attached Form 3 is the same as the statement in the column of "party's assertion and judgment" in the list of property statements subject to division.

(d) Ratio and method of division of property;

1) Division ratio: Plaintiff 15%, Defendant 85%

[Ground of determination] The degree of contribution of the Plaintiff and the Defendant to the formation and maintenance of the property subject to division as seen above, and the process and duration of marital life, income, property and economic power of the Plaintiff and the Defendant, peculiarly, the Plaintiff and the Defendant left separately from February 1, 1999, the real estate acquired by the Defendant after his/her separation accounts for the most part of the property subject to division, and the Defendant has borne military school expenses, living expenses and marriage funds, etc. even after his/her separation.

2) The method of division of property: taking into account various circumstances revealed in the arguments in the instant case, such as the parties’ intention, the ownership of the property subject to division as seen earlier, the process of acquisition and maintenance of the property subject to division, and the status of use, the part out of the amount to be reverted to the Plaintiff according to the said division ratio shall be determined that the Defendant pays to the Plaintiff the shortage of money.

3) Property division amount that the Defendant shall pay to the Plaintiff: 499,000,000 won

【Calculation Form】

① The Plaintiff’s share according to the division ratio of property among the Plaintiff and Defendant’s net property

Total net property 3, 333, 708, 336 X 15% = 500,056, 250 won (turf less than won)

(2) Amount under paragraph (1) less the Plaintiff’s net property.

49, 056, 250 won ( = 500, 056, 250 won - 1,000, 000 won)

[3] Division of property that the Defendant pays to the Plaintiff

② The amount set forth in the above paragraph is 499,00,000 won, less than the amount set forth in the above paragraph.

E. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff the amount of 499,00,000 won and damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from the day following the final judgment of this case to the day of full payment.

4. Conclusion

Therefore, the principal lawsuit and counterclaim divorce claim are accepted for each reason, and the principal lawsuit and counterclaim consolation money claim are dismissed for each reason. It is decided as per Disposition with respect to division of property as above.

Judges Cho Jae-sung

Judges Lee E-young

List of Property to be divided

A person shall be appointed.

A person shall be appointed.