[이혼등][공1997.11.1.(45),3288]
If the amount of debt subject to liquidation is deducted from the total value of the property, if there is no remaining amount, the other spouse’s claim for division of property (negative)
In cases where one side of the married couple bears the obligation to a third party during marriage, the obligation that is accompanied by the formation of joint property among the said obligation is subject to liquidation. As such, if one side of the married couple bears the obligation subject to liquidation as above and deducts the above obligation from the total property value, if there is no amount remaining, the other party’s claim for division of property cannot be accepted.
Articles 839-2 and 843 of the Civil Act
Supreme Court Decision 92Meu501 delivered on May 25, 1993 (Gong1993Ha, 1881) Supreme Court Decision 94Meu1072 delivered on December 2, 1994 (Gong195Sang, 491)
Plaintiff
Defendant
Principal 1 et al.
Busan High Court Decision 97Reu193 delivered on May 28, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief being filed after the lapse of the period for supplemental appellate brief).
1. In a case where one side of the married couple bears the obligation to a third party during marriage, the obligation accompanied by the formation of the joint property among the said obligation is subject to liquidation. As such, in a case where one side of the married couple bears the obligation subject to liquidation as above, and the above obligation is deducted from the total value of the property, if there is no remaining amount, the other party’s claim for division of property cannot be accepted (see Supreme Court Decisions 92Meu501 delivered on May 25, 1993; 94Meu1072 delivered on December 2, 1994, etc.).
According to the reasoning of the judgment below, from January 20, 197, immediately after the marriage with the plaintiff, the court below: (a) purchased real estate listed in the attached Table as of June 20, 1990 from around 1, 197 to around 00, and completed the registration of transfer under the name of the defendant on July 20, 199; (b) on October 4, 1994, around 194, the defendant extended a loan of KRW 60 million from the National Agricultural Cooperative Federation to 60,000,000 to 10,000 won as security; (c) on the above real estate, the court below determined that the defendant's claim for the above real estate as of 100,000 won as well as the loan and loan of KRW 72,00,000 to 10,000,000 for the above real estate as well as the lease and loan of KRW 634,6362,000,00.
In light of the records and the legal principles as seen earlier, the above recognition and determination by the court below is justifiable, and there is no error of law such as the theory of lawsuit or incomplete hearing.
2. Meanwhile, according to the records, the court below's decision that the defendant should pay 150,000 won each month to the plaintiff as consolation money, 10,000 won for the principal of the case, 1, and 2 of the case, respectively, as a child support for the principal of the case, is justified, and there is no error of law such as the theory of lawsuit. All arguments are without merit.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-sik (Presiding Justice)