[이혼,위자료][집38(4)특,369;공1991.2.15.(890),635]
Whether the grounds for divorce recognized by the first instance court may be recognized in the appellate court's judgment on the part of the claim for consolation money where the judgment of the first instance which accepted the claim for divorce becomes final and conclusive (affirmative)
Even if both parties did not appeal the part of the first instance judgment which accepted each of the parties' respective claims for divorce, it became final and conclusive as to the grounds for divorce recognized by the first instance court, and thus, the appellate court cannot be bound by the appellate court. Thus, it cannot be said that the appellate court erred by recognizing different reasons as to the grounds for divorce recognized by the first instance court while deciding on the aforementioned part by
Article 32 of the former Personnel Litigation Act (amended by Act No. 4300 of Dec. 31, 1990); Article 202(1) of the Civil Procedure Act
Claimant (respond-Appellee)
The respondent (Appellant) (Attorney Lee Young-gu, Counsel for defendant-appellant)
Seoul High Court Decision 89Reu3939, 89Reu3946 decided Apr. 20, 1990
The judgment below is reversed and the case is remanded to Seoul High Court.
1. We examine the first ground for appeal.
Even if both parties did not appeal the part of the first instance court which accepted each claim for divorce, it is not binding upon the appellate court because the facts as to the grounds for divorce recognized by the first instance court, which became final and conclusive, and thus, it cannot be said that the court below erred by misapprehending the legal principles as to consolation money or by misapprehending the reasoning of the first instance court's judgment, and by recognizing different reasons as to the grounds for divorce recognized by the first instance court while deciding consolation money by appeal of the claimant (a half-Appellee and hereinafter the same shall apply). In light of the records, we cannot accept the court below's decision in light of the records, we cannot accept the argument that the court below erred by misapprehending the legal principles as to consolation money or by misapprehending the legal principles as to the grounds for divorce recognized by the first instance court. In light of the court below's decision in light of the records,
2. We examine the second ground for appeal.
In light of the records, it is clear that the respondent raised a defense that he/she would offset the amount of consolation money against the obligation to pay consolation money of this case with his/her right to claim the return of the claimant's money, claiming that he/she left as the claimant's money 15,00,000 won, while making a request for a counter-request made at the fourth hearing of the first instance of this case. Nevertheless, without mentioning all of this point, the court below was impossible to find whether the respondent calculated the amount of consolation money to be paid by the respondent without deducting the obligation to return the amount of consolation money by citing the defense of the set-off, or whether the remainder after deducting the obligation to return is recognized as consolation money or the respondent rejected the right to claim a return as argued by the respondent. In this regard, the judgment of the court below is not erroneous or unreasonable, and the illegality affected the
3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Ma-tae (Presiding Justice)