2014Dhap1341 (Counterclaims), divorce, etc.

Busan

Law Firm Doz.

Busan

Law Firm Doz.

(************ 2**********)

Seoul

2. KimE (********* 4*********))

Busan

2. Defendant (Counterclaim Plaintiff) KimB shall pay to Plaintiff (Counterclaim Defendant) 117,00,00,000 as division of property, and the amount calculated by the rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. Defendant (Counterclaim Plaintiff) KimB shall pay to Plaintiff (Counterclaim Defendant) 20,000,000 consolation money with 5% per annum on July 23, 2015 and 20% per annum on July 23, 2015 from the next day to the day of full payment.

4. The plaintiff (a counterclaim defendant) shall be designated as a person in parental authority and a custodian of the principal of the case.

5. Defendant (Counterclaim Plaintiff) KimB shall pay to Plaintiff (Counterclaim Defendant) the child support of the principal of the case from July 23, 2015 to the day before the principal of the case reaches each adult age, in the amount of KRW 1,00,000 per person per month, as the child support of the principal of the case from July 23, 2015.

6. Defendant (Counterclaim Plaintiff) KimB may, until the principal of the case reaches his majority, have the interview right as follows.

A. The second day of each month: fourth Saturday 11: Sundays 17:00 to the following day:00 the residence of the Defendant (Counterclaim Plaintiff) KimB, or the place at which the Defendant (Counterclaim Plaintiff) KimB may be responsible.

B. The Plaintiff (Counterclaim Defendant) must cooperate to the maximum extent possible so that the visitation right can be achieved smoothly.

C. The above visitation right matters may be changed if, in consideration of the welfare of the principal of the case, the agreement between the plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) KimB is reached.

7. The plaintiff (Counterclaim defendant)'s remaining principal claim against the defendant (Counterclaim plaintiff) KimB and the defendant (Counterclaim plaintiff) KimB's counterclaim claim against the defendant KimCC and all of the defendant (Counterclaim plaintiff) KimB's counterclaim claim are dismissed.

8. The costs of lawsuit between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) KimB are assessed against the Plaintiff (Counterclaim Defendant) for 20% of the costs of lawsuit, including the principal lawsuit, the counterclaim and the counterclaim, and the remainder is assessed against the Plaintiff (Counterclaim Defendant) KimB. The costs of lawsuit between the Plaintiff (Counterclaim Defendant) and the Defendant KimB are assessed against the Plaintiff (Counterclaim Defendant).

9. Paragraphs 3 and 5 of this Article may be provisionally executed.

The defendant 1, 4, 5, 246, 35 won as division of property and the amount calculated by the rate of 20% per annum from the date of this decision to the date of complete payment with respect to the plaintiff (the counter-party defendant; hereinafter "the plaintiff") KimB shall pay to the plaintiff (the counter-party defendant; hereinafter "the plaintiff") 165, 246, 335 won as division of property. The defendants shall pay compensation to the plaintiff 50,00,000 won as consolation money and the amount calculated by the rate of 20% per annum from the date of this decision to the date of full payment with respect to them.

2. Purport of the counterclaim

The plaintiff and defendant KimB shall be divorced. The plaintiff shall designate defendant KimB as the person in parental authority and career of the principal of this case. The plaintiff shall pay 50,000,000 won as consolation money and 20% per annum from the day following the day of this decision to the day of complete payment. The plaintiff shall pay 300,000 won per month for each of the principal of this case from the day of this decision until the day of this decision to the day of full payment. The plaintiff shall pay 600,000 won for each of the principal of this case.

A. Facts of recognition

1) The Plaintiff and Defendant KimB reported marriage on November 5, 1996, and among them, the instant persons were children.

2) On around August 2012, the instant principal KimBE found that Defendant KimB sent a text message stating that “Defendant KimB shall love to all members” from the cell phone of Defendant KimB, and said fact to the Plaintiff. On August 2012, the Plaintiff, who was suspected of having committed an unlawful act by Defendant KimB, discovered Defendant KimB’s motor vehicle at the apartment parking lot of Defendant KimCC, working at the same workplace as Defendant KimB, such as Defendant KimB, and called Defendant KimB to Defendant KimB at the said parking lot. After that, Defendant KimB thereafter recognized the Plaintiff “FB as winded.”

3) Defendant KimB assaulted the Plaintiff around November 6, 2013, while disputing the Plaintiff.

4) From December 2013, Defendant KimB had his parent, Kim FF, Cho GG, Busan,* Dong* Dong************ apartment******************************* (hereinafter referred to as the “instant apartment”)), and had the Plaintiff and the instant principal reside together with more serious conflicts, such as the Plaintiff, the said KimF, and Cho GG, whose parents are not good, were dissatisfied with the other party’s criticism or criticism.

5) Around April 11, 2014, Defendant KimB disposed of the instant apartment, and thereafter the director was employed at around that time. During that process, Defendant KimB left part of the goods, such as clothes, household goods, etc. of the Plaintiff and the instant principal, to the storage company. The Plaintiff became aware of the disposition of the instant apartment on the date of the said director, and thereafter, was living separately from the instant principal, Defendant KimB, and up to now.

[Ground of recognition] Gap evidence Nos. 1 through 5, 8 (including branch numbers), family affairs investigators' investigation report and mediation protocol report, the purport of the whole pleadings

B. Judgment on the grounds for divorce and consolation money

1) A principal claim for divorce: A ground under Article 840 subparagraph 6 of the Civil Act exists.

2) Claim for consolation money: 20,000,000 won

3) Counterclaim divorce and claim of consolation money: Each dismissal

[Grounds for Determination]

A) The Plaintiff and Defendant KimB’s failure of marriage: As seen above, various circumstances were considered, such as the Plaintiff and Defendant KimB were separated from April 11, 2014, and the Plaintiff and Defendant KimB sought divorce through the principal lawsuit and counterclaim in the instant case.

B) The main liability for failure is against Defendant KimB: A evidence No. 1-1 and No. 2 of the evidence No. 1-2; according to each of the statements, the Plaintiff’s act was committed against the Plaintiff’s husband on June 6, 2008, and Defendant KimB, which caused damage to the Plaintiff’s relationship between the Plaintiff and the Defendant KimB by finding the Defendant’s work site Kim Jong-B, etc., on June 6, 2008.

In this case, violence was committed against the Plaintiff, KimFF, and ChoG, who were in conflict with the Plaintiff, resided in the same house. Furthermore, the act of disposing of the instant apartment without the Plaintiff and the director, etc., led to a situation in which the instant marriage relationship could not be complied with. Therefore, it is reasonable to view that the fundamental and main responsibility for the failure of the marriage relationship lies in Defendant KimB.

On the other hand, Defendant KimB is likely to cause the failure of the marriage due to the shortage of the Plaintiff’s shortage, but it is not possible to recognize this only by the evidence submitted to this court. Thus, the above assertion is not accepted.

C) The obligation to pay consolation money to the Plaintiff by Defendant KimB: Defendant KimB has the obligation to pay consolation money for mental suffering that the Plaintiff sustained due to the failure of the marriage relationship. The amount was determined by taking into account all the circumstances shown in the arguments, such as the cause and degree of liability of the Plaintiff due to the failure of the marriage relationship, and the period of marriage, age, occupation, and economic history of the Plaintiff and Defendant KimB.

C. Sub-determination

Therefore, under this lawsuit, the Plaintiff and Defendant KimBB are divorced, and Defendant KimB is obligated to pay to the Plaintiff the delayed damages calculated by applying each ratio of 20,000 per annum under the Civil Act to July 23, 2015, which is the date of this judgment, and 5% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

3. Determination on the Plaintiff’s claim of consolation money against Defendant KimCC

The plaintiff asserts that the defendant KimCC should pay consolation money to the plaintiff because it caused the failure of the marriage by committing the illegal act with the defendant KimB. In addition to the contents of the Gap evidence No. 8-1 and No. 2 in the above facts of recognition, the above facts of recognition showed a solid situation to suspect the improper relationship between the defendants, but even if so, it is insufficient to find the specific facts of the defendant's wrongful act that can serve as the basis for paying consolation money, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's claim for consolation money against defendant KimCC is rejected.

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

(a) Details and current status of property formation;

1) The plaintiff was in exclusive charge of raising family affairs and children as a professional supervisor during the marriage life, and was separated from the defendant KimB,**** working at the CCTV control center, and received a monthly pay of KRW 1,30,000. The defendant KimB started working from September 16, 1991 to ******************** a 50,000 family members per month while working as the head of the division.

2) Defendant KimB acquired the instant apartment in the name of Defendant KimB under the name of Defendant KimB, with the following facts: (a) around February 28, 2003: (b) around 1996, Defendant KimB resided in Busan** Dong******* housing** Dong****. The Plaintiff and Defendant KimB acquired the instant apartment in the name of Defendant KimB, with the price received by disposing of the said apartment around February 28, 2003, around KRW 55,000,000, and KRW 73,000,000.

3) As the conflict with the Plaintiff becomes worse, Defendant KimB significantly decreased the Plaintiff’s use limit from July 2013, and from around December 2013, Defendant KimB suspended the said credit card and did not pay the Plaintiff a living cost separately.

4) On April 11, 2014, Defendant KimB sold the instant apartment and received KRW 190,00,000, and KRW 88,085, and 600 among them, Defendant KimB used the amount of KRW 73,085,60, and the amount of KRW 15,000, and the amount of KRW 15,00,00, and the amount of KRW 800,00 as brokerage fees, and the amount of KRW 1,260, and the amount of KRW 2,060,00 as directors’ expenses of Defendant KimB.

[Ground of recognition] Gap evidence 7, 9, 11, Eul evidence 13-3, Eul evidence 6, 10-13, Eul evidence 6, 10-13 (including main numbers), the submission of each financial transaction information by the Korea Bank, the Korea Bank, and the Korea Life Insurance Co., Ltd., and the results of each inquiry into the fact-finding with respect to the Korea Life Insurance Co., Ltd., the family investigator's investigation report, the whole purport of the arguments, and the whole purport of the arguments.

(b) Object and scope of division of property;

1) Property subject to division: In principle, the property subject to division shall be determined based on the date of the closing of argument in a divorce lawsuit. However, in a case where there are special circumstances, such as that a change in the property relationship arising between the date of closing of argument following the failure of marriage and the date of closing of argument in a divorce lawsuit is irrelevant to the property relationship jointly formed during the marriage, the changed property should be excluded from the property subject to division (see Supreme Court Decision 2013Meu1455, Nov. 28, 2013). Reviewing the facts acknowledged earlier, the instant marriage relationship becomes extinct around April 2014. The change in the property relationship between the plaintiff and the defendant KimB, which occurred thereafter, appears to be unrelated to the property relationship jointly formed during the marriage. Accordingly, the property subject to division is not related to the property relationship jointly formed during the marriage.

2) The value of the property to be divided;

A) Plaintiff’s net property: 13,650,000 won

B) Net property of Defendant KimB: 313, 414, 810 won

C) Total amount of net assets of the Plaintiff and Defendant KimB: KRW 327,064,810

3) Determination of the parties’ assertion on the property subject to subdivision

A) The sales price of the instant apartment

Defendant KimB asserted that only the remaining amount after deducting director's expenses and storage expenses incurred by Defendant KimB from the sales price of the apartment of this case shall be subject to the division of property. However, in light of the process of disposal of the apartment of this case, the above expenses were paid regardless of the property relationship formed jointly during marriage. Accordingly, Defendant KimB's above assertion is rejected.

(b)* Shares in each land in the face *

If the result of the fact-finding conducted by Defendant KimB on June 4, 2007, the Court Administration, and the Ministry of Land, Transport and Maritime Affairs, was based on the statement of No. 6, and the fact-finding conducted by the defendant KimB on the Ministry of Land, Transport and Maritime Affairs, the fact-finding conducted by the defendant KimB on the Ministry of Land, Transport and Maritime Affairs ** * * ** * 1,431m of forest land, * ** * * * * 80m of forest land, * * * * * * 529mm2 of forest land, * * * * * * * * 55m2m2 of old land, * * * * * * * * * 1, 400m2 of the divided land's share in each of the above circumstances.

(C) af bargaining passenger car (*******)

The Plaintiff asserted that the Plaintiff’s car under the Plaintiff’s name should be excluded from the subject of division of property, since the Plaintiff’s mother entered the said car at the cost of Kim H, Kim H, but it is insufficient to recognize the above assertion only on January 27, 2015. As such, the Plaintiff’s head of the said state is not accepted.

D) Retirement benefits:

Defendant KimB asserted that the retirement benefits of the above Defendant corresponding to the period before marriage between the Plaintiff and the Plaintiff are not H of division of property. However, even if the property was acquired before marriage, as long as the spouse contributed to the maintenance and formation of the property, the above Defendant’s assertion is without merit.

(c) Ratio and method of division of property;

1) Division ratio: Plaintiff 40%, Defendant KimB 60%

[Grounds for Determination]

The following circumstances were considered: (a) the process and duration of the marital life of the Plaintiff and Defendant KimB; (b) the Defendant KimB obtained stable income while working as KRW *; (c) the Plaintiff used a large amount of income as the main part of the living expenses; (d) the Plaintiff was in exclusive charge of domestic affairs and bringing up the principal of the case; (e) the Plaintiff ought to bring up the principal of the case; (e) the time and background of the instant strike; (e) the percentage of the time of acquisition and the developments leading up to the marriage between the Plaintiff and Defendant KimB; and (e) the occupation of the Plaintiff and Defendant KimBB.

2) The method of division of property: In light of the name and form of the property subject to division, the grounds for acquisition and use of the property, the convenience of division, etc., Defendant KimB shall be determined to pay to the Plaintiff the shortage of the amount to be reverted to the Plaintiff according to the above division ratio.

3) Property division amount to be paid by Defendant KimB to the Plaintiff: KRW 117,00,000

【Calculation Form】

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

Total net property 327,064, 810 won x 40% = 130, 825, 924 won

B) Amount obtained by deducting the Plaintiff’s net property from the amount of paragraph (a) above

130, 825, 924 - 13, 650, 00 won = 117, 175, 924

C) Property division amount that Defendant KimB pays to the Plaintiff

B) The amount of the above section 117,00,000,000

(d) Sub-committee;

Therefore, Defendant KimB is obligated to pay to the Plaintiff KRW 117,00,000 as division of property, and damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from the day following the day when this judgment became final and conclusive to the day of full payment.

5. Determination as to the designation of a person with parental authority and a person with parental authority over the principal lawsuit and counterclaim, a claim for child support, and an interview right (ex officio)

A. Part of a claim for designation of a person with parental authority and a custodian

In full view of all the circumstances revealed in the arguments in the instant case, including the Plaintiff and Defendant KimB’s marital life and distress situation, the age and custody status of the principal of the instant case, and the intention of the parties to the instant case, it is reasonable to designate the Plaintiff as a person with parental authority and custodian of the principal

B. Part of claim for child support

1) Occurrence of obligation to pay child support

Defendant KimB, as his father, is responsible for fostering the principal of the case together with the Plaintiff, is obligated to pay the child support for the principal of the case.

2) Amount of child support to be paid by Defendant KimB

Considering all the circumstances revealed in the instant argument, such as the Plaintiff and the Defendant’s economic ability, the age of the principal of the instant case, and the situation of fostering, it is reasonable to determine the child support of the principal of the instant case to be borne by Defendant KimB in the amount of KRW 1,00,000 per person, respectively. Therefore, Defendant KimB is liable to pay to the Plaintiff KRW 1,00 per person per each of the instant principal of the instant case from July 23, 2015 to the day before the principal of the instant case’s age.

(c) Interview (ex officio determination).

Defendant KimB has the right to interview the principal of the case as a parent who is not a custodian of the case. The time and method of this visitation is determined, taking into account the age, living environment, intention, etc. of the principal of the case.

4. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit is accepted as reasonable, and the remainder is dismissed as it is without merit. The plaintiff's claim against the defendant KimCC and the plaintiff KimB's counterclaim against the defendant KimB are all dismissed as it is without merit. The plaintiff's claim for divorce against the principal of this lawsuit is dismissed as it is all dismissed, and it is so decided as per Disposition with respect to the person with parental authority and custody over the principal of this case, child support, and visitation right (ex officio).

Judges Kim Jin-jin

Judges Park Jong-hee