2016drid 9106 (Counterclaim) Confirmation of nullity of marriage

Busan Address

Busan District Court

Attorney Lee Do-young

Busan Address

Busan place of service

Busan District Court

Law Firm Doz.

2. The plaintiff (Counterclaim defendant)'s primary claim of the main lawsuit, the conjunctive consolation money claim of the main lawsuit, the defendant (Counterclaim plaintiff)'s claim of consolation money, and the counterclaim of the counterclaim of division of property are dismissed, respectively.

3. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) respectively. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant).

[Counterclaim] The Plaintiff and the Defendant are divorced. The Plaintiff shall pay to the Defendant consolation money at the rate of 15% per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment with respect to the amount of KRW 30 million as consolation money, and the amount of KRW 200 million as division of property, and each of the above amounts.

The plaintiff and the defendant were married around 1985 but they became final and conclusive on August 2, 1995 and divorced. After that, the defendant later brought a marriage to Busan Metropolitan City** head of the Gu on June 12, 2013 (hereinafter referred to as "the marriage report of this case", and "the marriage of this case").

[Grounds for recognition] Gap 1 and 2 evidence, the purport of the whole pleading

2. Judgment as to the main claim

A. The plaintiff's assertion

Since the defendant unilaterally reported the marriage of this case without the plaintiff's consent, the divorce of this case is null and void.

B. Determination

Article 815 subparag. 1 of the Civil Act provides that when there is no agreement between the parties to marry, the parties shall enter into an agreement of marriage to take effect. The agreement of marriage means the agreement between the parties to have a mental or physical combination, which is deemed to be a couple under a social concept, and the agreement of marriage ought to exist at the time when the marriage is reported (see Supreme Court Decisions 94Meu1089, Jun. 28, 1996; 201Meu574, Jun. 10, 201).

The following circumstances, which are acknowledged by the overall purport of evidence Nos. 1, 5, 6, and 8 through 11, and the testimony and arguments of witnesses Kim Jong-soo, have been maintained, such as: (a) the Plaintiff and the Defendant resided in the same building even after they have divorced according to the final and conclusive judgment; (b) the Plaintiff had been given economic support to the Defendant; and (c) the Plaintiff has been entering the insurance policy for the insured; and (d) the Defendant, during the period from Dec. 2, 2005 to Oct. 2, 2010, even though the Plaintiff had been operating the restaurant with the name of “A,” and was working as a restaurant at the time of the Plaintiff’s entry into the site located in Busan-gun, Busan-gun, and 11; and (e) the Plaintiff’s father died at around Apr. 2, 2013; and (e) the Plaintiff’s mother and the Defendant’s mother were living in the above building during the marriage period of 1, 2013.

Therefore, the plaintiff's above assertion is without merit.

3. The claim for preliminary divorce, the claim for consolation money, the claim for counterclaim and the claim for consolation money

In light of the following circumstances, the plaintiff and the defendant suffered conflict between the plaintiff and the plaintiff and the defendant before and after the report of the marriage of this case, and eventually, the plaintiff and the defendant have been living separately from the plaintiff until September 2014, and the plaintiff and the defendant wanted to divorce with their main claim and have not made any effort to recover the marital relationship. The marriage between the plaintiff and the defendant constitutes a cause of judicial divorce under Article 840 subparagraph 6 of the Civil Act, and the plaintiff and the defendant's liability are equal.

Therefore, both the plaintiff's conjunctive divorce claim and the defendant's counterclaim divorce claim are justified, and both the plaintiff's conjunctive consolation money claim and the defendant's counterclaim consolation money claim are without merit.

4. Determination on the claim for division of property

A. The defendant's assertion

The plaintiff's active property is the plaintiff's active property: ① the second floor store and the second floor market price of the PP, among the buildings scheduled to be newly constructed on the ground located in the Geum-gu Busan Metropolitan City, equivalent to KRW 2 billion; ② the bank deposit equivalent to KRW 900 million; ③ the market price of the PP in Busan Metropolitan City is equivalent to KRW 15.4 million; ④ the market price of the land located in the Nam-gu, Nam-gu, Nam-gu, and KRW 8,6.20 million; ⑤ The market price of the land located in the Nam-gu, Nam-gu, Nam-gu, and KRW 200 million. The small property is the small property, and the defendant is not active, and the defendant is obligated to pay KRW 200 million to the defendant as property division.

B. Determination

Property already acquired by one spouse before marriage or acquired through donation, inheritance, etc. during marriage does not, in principle, be subject to division of property. However, in a case where the other spouse actively cooperates in the maintenance of the unique property and has prevented the decrease thereof, it shall be subject to division (see Supreme Court Decisions 92Meu501 delivered on May 25, 1993; 2002Du36 delivered on August 28, 2002).

First of all, we examine the above ① and ②’s active property. The Defendant asserts that the Plaintiff sold the building and land Plaintiff and acquired the aforementioned active property in return for the sale, and according to the purport of the statement and the entire pleadings in Eul evidence No. 1, it is recognized that the building and land located in the Geum-gu Busan, Busan, which was in operation of the Plaintiff “A”, were registered as preservation of ownership or registered as transfer of ownership before the marriage of the instant case. Therefore, the aforementioned active property acquired in return for the sale of the said building and land constitutes the property acquired before marriage of the Plaintiff. Therefore, the evidence submitted by the Defendant alone insufficient to recognize the fact that the Defendant actively prevented the decline in the maintenance of the above toxic property or cooperates in the proliferation thereof. Accordingly, the aforementioned active property is not subject to division of property.

Next, the above three active properties are examined. According to the evidence evidence evidence evidence No. 2, regarding the apartment that is the above active property, the fact that the Plaintiff had become a transfer of ownership, etc. on February 28, 2012 before the marriage of this case is recognized. Therefore, the above active property is attributable to the property that the Plaintiff acquired before marriage, and the evidence submitted by the Defendant alone is insufficient to recognize the fact that the Defendant actively prevented the decrease in the amount of his cooperation in the maintenance of the above active property or cooperates in the proliferation thereof, and there is no other evidence to acknowledge it. Accordingly, the above active property is not subject to division of property.

Next, we examine the above (4) and (5) active property: According to the evidence evidence Nos. 3 and 4, the ownership transfer registration for the Plaintiff on May 31, 1999 regarding the land that is the active property prior to the marriage of this case is recognized. Therefore, the aforementioned active property constitutes the property that the Plaintiff acquired prior to the marriage, and the evidence submitted by the Defendant alone is insufficient to acknowledge the fact that the Defendant actively prevented the reduction of the amount of the active property or has cooperated for the proliferation thereof, and there is no other evidence to acknowledge it. Accordingly, the aforementioned active property is not subject to property division.

In addition, there is no evidence to prove the fact that the plaintiff holds the aforementioned active property.

Ultimately, since the Plaintiff’s active property claimed by the Defendant is not subject to division of property or its existence is not recognized, the Defendant’s claim for division of property is without merit (in relation to the Defendant’s claim for division of property of KRW 10 million, which is the Defendant’s exclusive property, the Defendant’s claim for division of property, there is no evidence to acknowledge the existence of the above loan obligation or that it is subject to division of property, even if it is the Defendant’s claim for division of property.

5. Conclusion

Therefore, the plaintiff's conjunctive divorce claim and the defendant's counterclaim divorce claim are accepted respectively, and the plaintiff's conjunctive divorce claim are dismissed, and the plaintiff's conjunctive consolation money claim, the defendant's counterclaim consolation money claim, and the counterclaim property division claim are dismissed.