2018Reu125 (Counterclaim) Divorce and solatium

2. Fixedness;

2. The part concerning the child support in the judgment of the court of first instance, including the child support for which the claim is expanded by this court, shall be modified as follows. The defendant shall pay to the plaintiff 15 million won as the child support of the principal of the case in the past, and shall pay 30,000 won per capita from June 2019 to the date when the principal of the case in the future reaches each adult age.

3. The Defendant (Counterclaim Plaintiff) may visitation the instant principal as follows:

(a) Details of the visitation right;

1) The Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) from the time the instant judgment became final and conclusive until the day before the principal becomes a middle school student may have a telephone conversation with the principal of the instant case from 18:00 to 18:10 each month. The said telephone call time may be extended as desired by the principal of the instant case. The said telephone call time may be changed for the purpose of the principal’s schedule, etc., but the said call time shall be notified three days before the principal of the instant case and shall be subject to the consent of

2) In addition to the telephone communications referred to in paragraph (1) from the date the principal of the case became a middle school student to the date the principal of the case reaches each adult age, the Defendant (Counterclaim) may make a delivery to the principal of the case at the place designated by the Defendant (Counterclaim Plaintiff) from the first week of each month and the third Saturday to the same day from 10:00 to 20:00 of the same day. In this case, the Defendant (Counterclaim Plaintiff) shall receive the principal of the case from the place of residence of the principal of the case or the place promised with the Plaintiff (Counterclaim Defendant) in a safe and appropriate manner and deliver the principal of the case at the above place. The above telephone negotiation schedule may be changed on the grounds of the schedule, etc. of the principal of the case, but it shall be notified three days prior to

(b) Matters to be observed;

1) The Plaintiff (Counterclaim Defendant) shall actively cooperate with the Plaintiff so that visitation right can be exercised smoothly.

2) The Defendant (Counterclaim Plaintiff) must hold visitation rights in the direction of respecting the intent of the instant principal to the maximum extent possible.

4. All of the Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s appeal expanded by this court and the Defendant (Counterclaim Plaintiff)’s remaining counterclaim claim filed with this court are dismissed.

5. The total cost of a lawsuit shall be borne individually by each party.

6. Paragraph 2 can be provisionally executed.

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") are divorced. The defendant shall pay 30 million won as consolation money to the plaintiff. The defendant shall designate the plaintiff as the person in parental authority and the guardian of the principal of the case. The defendant shall pay the plaintiff 35 million won as the child support of the principal of the case in the past, and shall pay the plaintiff 35 million won as the child support of the principal of the case in the future from March 1, 2018 to the day before the principal of the case becomes the adult (the plaintiff added the claim for consolation money at the appellate court, and extended the period and amount of the child support claim).

Counterclaim: The Plaintiff and the Defendant shall be divorced. The Plaintiff shall pay consolation money of KRW 50 million to the Defendant. The Defendant shall be designated as the person in parental authority and the guardian of the instant principal. The Plaintiff shall pay to the Defendant a monthly amount of KRW 300,000 per head of the instant principal by the day the principal of the instant case becomes an adult as child support for the principal of the instant case. The Defendant may have an interview with the principal of the instant case (the Defendant filed a counterclaim in the appellate trial).

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

A. The parties' assertion

The Defendant did not know the fact that the instant lawsuit was brought to the wind working in another place from April 2017 to October 201 of the same year. Ultimately, the first instance court proceedings were followed by service by public notice, and the Defendant perused the authentic copy of the judgment of the first instance only during the period from December 15, 2017. The Defendant asserted that the Defendant’s appeal for subsequent completion was lawful, insofar as the Defendant filed an appeal for subsequent completion on December 22, 2017, which is within two weeks from the Defendant.

On November 19, 2017, the plaintiff filed a divorce lawsuit against the defendant and knew that the lawsuit was under way by public notice, but the defendant intentionally refused to serve the document to avoid divorce, so the defendant asserts that the appeal by public notice is unlawful.

B. Determination

The evidence presented by the Plaintiff alone is insufficient to recognize that the Defendant was aware of the progress of the instant lawsuit or intentionally refused to serve the documents. Rather, according to the overall purport of the Plaintiff’s evidence Nos. 39 and No. 11, the Plaintiff changed contact address of the Plaintiff and the Defendant and did not contact with the Defendant around December 4, 2016, and the Plaintiff submitted an application for divorce, etc. to this court on June 9, 2017, and issued an order to serve public notice to the Defendant on July 20, 2017, on which the Plaintiff did not serve the Defendant. The Defendant was dispatched to ○○○ from April 3, 2017 to October 23, 2017 and served therein, and the first instance court ordered the Defendant to serve public notice on November 28, 2017, and notified the Defendant of the content of the judgment to the Defendant on July 21, 2017.

According to the above facts, it is reasonable to view that the defendant was aware that the lawsuit in this case was filed and sentenced to the first instance judgment only when he was served with the certification of contents from the plaintiff around December 14, 2017. Thus, the defendant could not be able to observe the period of appeal because he was unaware of the fact that the lawsuit in this case was pending due to a cause not attributable to himself. Accordingly, the appeal in this case was lawful within two weeks from the time when the defendant became aware of the judgment of the first instance court.

2. Facts of recognition;

The principal lawsuit and counterclaim shall also be deemed to have been filed.

A. The plaintiff and the defendant are legally married couple who completed the marriage report on February 27, 2008, and have minor case principal under the chain.

B. On November 29, 2010, the Plaintiff, without the Defendant and the Plaintiff, obtained a credit loan of KRW 10 million from △△△△△△△△, and lent the loan to △△△△△△△, which was known by the Defendant, repaid the full amount of the principal and interest of the loan on March 1, 201. Even thereafter, the Plaintiff borrowed KRW 15 million from △△△△△△△△△△△△△△△△△△△ on February 15, 2012 to △△△△△△△△△△△△△△△△△△△. The Defendant was dissatisfied with the Plaintiff’s frequent loan due to the Plaintiff’s frequent loan, and the Defendant

C. On October 27, 2010 and June 3, 2011, the Defendant lent a total of KRW 2,350,000,000 for three times to the Plaintiff’s Dong-in, the Plaintiff, on three occasions. However, in spite of the Defendant’s demand, Dogary was partially repaid and did not repay the remainder. In the process, the Defendant sold that the Plaintiff would file a complaint with the Plaintiff as a fraud or would not have been repaid in a planned manner.

D. The Plaintiff, who was married with the Defendant from around 2008 to around 2017, continued to receive treatment due to depression, anxiety, and depression, and was given a couple’s counseling around September 2012.

E. On June 2014, the Plaintiff began to reside in the room room located in the place where the principal of the case was sent back to the Plaintiff, and the Plaintiff was a director with the principal of the case on February 25, 2015, who was employed by the Plaintiff as a member of the staff of the ▽▽▽△△△△ who was operated by the Plaintiff’s dynamics. Since then, the Plaintiff and the Defendant continued to be dismissed.

F. On June 25, 2015, the Plaintiff sent two e-mail containing “I wish to do so even if I want to do so even if I want to do so,” and “I wish to do so,” on June 28, 2015, the Plaintiff sent two occasions e-mail containing “I wish to do so even if I want to do so even if I want to do so, I want to do so.”

G. Even after the separation, the Defendant made a speech to the effect that the Plaintiff flicks, such as informing another male, or criticizes the Plaintiff to the principal of the case, and the Defendant made a public announcement of his SNS to the effect that the Plaintiff flicks the Plaintiff.

H. Meanwhile, without the Plaintiff’s consent, the Defendant read the Plaintiff’s e-mail by hackinging the Plaintiff’s e-mail to him, and then submitted it to this court as evidence.

【Ground of recognition】 Each entry of evidence Nos. 8, 9, 19, 20, 4 through 8, 10 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

3. Determination on the principal lawsuit and counterclaim divorce and claim of consolation money

A. In light of various circumstances revealed in the pleadings of this case, the marriage between the plaintiff and the defendant was broken down, and this constitutes a cause for judicial divorce under Article 840 subparag. 6 of the Civil Act. Accordingly, all claims for divorce between the principal lawsuit and the counterclaim are justified.

B. Claim for consolation money for each principal lawsuit and counterclaim: The main responsibility for the failure of marriage lies in both parties, and the degree of the failure is equal, and therefore is without merit.

【Ground for judgment】

1) Parties’ assertion

The plaintiff, upon the plaintiff's request for divorce to the plaintiff at the time, made verbal abuse, such as demanding a divorce and going home, and made a fint and a converging the plaintiff from time to time, and did not respect the plaintiff as his spouse. The plaintiff did not properly look at the principal of this case, such as driving away from home. The plaintiff asserts that the marital life between the plaintiff and the defendant reached a failure due to the defendant's fault.

On the other hand, the defendant asserts that the marital life between the plaintiff and the defendant has reached a failure due to the plaintiff's fault since it was difficult for the plaintiff to make home economy by receiving a high interest rate loan without the defendant, and another male and female.

2) Determination

Although there was a mistake in the Plaintiff’s act of borrowing a large amount of loans without the Defendant and the Defendant’s attitude against the Plaintiff or his/her family, it is also inappropriate for the Plaintiff to be the spouse. In addition, even though the Plaintiff was under a separate interest, it was also erroneous for the Plaintiff to display a sense of view at the time of the opening of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch

4. Determination on designation of a person with parental authority and a custodian, child support, and visitation right

(a) Person with parental authority and custodian of the principal of the case;

In full view of all the circumstances shown in the argument of this case including the fact that the plaintiff raises the principal of this case, the reason why the plaintiff and the defendant have been married and failed, the degree of friendship with the principal of this case, the age of the principal of this case, the custody status to the present day, the result of the request for family investigation by the court, and the intention of the parties, it is reasonable to designate the plaintiff

(b) Child support;

Since the defendant is the father of the principal of the case and is responsible for bringing the principal of the case together with the plaintiff, the defendant is obligated to pay the child support to the plaintiff. Furthermore, in full view of the amount of the child support to be borne by the defendant, the amount of the child support to be borne by the defendant is determined to be KRW 15 million, and KRW 300,000 per 1 month per person for the future child support to be borne by the principal of the case from January to March of the same year, 2016 to the day before the day when the principal of the case reaches the age of the plaintiff and the defendant, his occupation and income, etc., the period when the plaintiff brought up the principal of the case neglectedly after his stay, and the amount paid by the defendant to the plaintiff during his stay (one hundred and five times every five times from January to March of the same year).

(c) Interview right;

The Defendant, who is not a child, has the right to interview with the principal of the case, unless it is contrary to the welfare of the principal of the case. Considering the age of the principal of the case, the current child care situation, the result of the request for family investigation by this court, such as the parties' intentions, and all the circumstances shown in the arguments of the case, it is reasonable to determine the visitation right as described in Paragraph 3 of the Disposition for the emotional stability and welfare of the principal of

5. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit and the defendant's claim for counterclaim divorce against the principal lawsuit shall be accepted for each reason, and the claim for consolation money and counterclaim consolation money shall be dismissed for each reason, and the designation of a person with parental authority and a person with custody, child support, and visitation right shall be determined as above. The judgment of the court of first instance, which has different conclusions, is unfair within its scope. As such, the judgment of the court of first instance, which has expanded in this court, accepted the plaintiff's claim for principal lawsuit and the defendant's counterclaim raised to this court, and revoked or altered the relevant part, but all the plaintiff's other expanded principal lawsuit

Judge O Sang-hun

Judges Dogdogia