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재산분할 30:70
(영문) 부산가정법원 2018.11.1.선고 2016드단212056 판결

사실혼관계해소에의한재산분할등

Cases

Property division, etc. by a de facto marriage complaint 2016dle212056

Plaintiff

A

Defendant

Section B.

Conclusion of Pleadings

October 4, 2018

Imposition of Judgment

November 1, 2018

Text

1. The Defendant:

(a) 10,00,00 won as consolation money, and 5% per annum from December 22, 2016 to November 1, 2018; and 15% per annum from the following day to the date of full payment;

(b) Money with respect to property division of 71,00,000 won and 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment; and

(D) each payment.

2. The plaintiff's remaining claim for consolation money is dismissed.

3. Of the costs of lawsuit, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1-A(a) may be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 20,00,000 won with 15% interest per annum from the service date of a copy of the complaint of this case to the day of full payment, with 106, 896, 727 won as division of property, and 5% interest per annum from the day after the day when the judgment of this case became final to the day of full payment.

Reasons

1. Facts of recognition;

A. A. Around 2003, around 2003, the Plaintiff had a child between the former husband and the former husband. The Defendant’s wife died on January 25, 2014 while the former husband was dead.

B. The Plaintiff and the Defendant brought up their respective children from March 2004, and were raising their respective children at the time, but from October 2006, they lived separately with the Defendant and the Defendant’s children. At that time, the Defendant and the Defendant’s children were transferred from around October 2006 to a restaurant that the Plaintiff acquired and operated from the Defendant and resided in the room. From April 2008, they purchased apartment houses in Busan and resided together with the Plaintiff’s children, the Defendant, and the Defendant’s children were transferred to Daegu Shipping Daegu, and each their children were living together until they were born.

C. The Defendant, from December 2006, remitted money to the Plaintiff as a living cost, and the Plaintiff paid money to the Plaintiff for the Defendant and the Defendant’s children.

D. The Plaintiff served as the Defendant’s father (in June 2015, around 2015) and mother (in May 2016, around 2016).

E. Meanwhile, from October 2015, the Defendant had been engaged in gambling without speech while holding a club of the same group, and around June 14, 2016, the content that the Defendant dialogues the Plaintiff and another woman in the condition that the telephone was not cut off during the phone, and the Defendant is called as “A, Russ, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, Is, who are not “Is, Is, Is,

F. The Plaintiff and the Defendant conflict with the foregoing day, and the Plaintiff was at around November 25, 2016, and two persons were selected from around 2016.

G. After the separation of the Plaintiff and the Defendant, there was a statement that the pictures taken by the Defendant and leap 00 together with the Defendant’s daughters were listed in the Defendant’s SNS and sent to the Defendant’s love family.

2. Determination as to whether a de facto marital relationship exists

According to the above facts, at least from October 2006 to November 25, 2016, the plaintiff and the defendant were in de facto marital relationship with the plaintiff from around October 2006.

In this regard, the defendant asserts that the living relationship between the plaintiff and the defendant is not a de facto marital relationship, but a de facto marital relationship, so the plaintiff's consolation money and the claim for division of property on the premise that it is a de facto marital relationship is unfair.

However, in full view of the purport of the argument in the above facts, the defendant's wife lived separately with the defendant and his former wife from October 2006 to January 201, 2014. From October 2006, the defendant and his children moved to a restaurant operated by the plaintiff and resided therein. From April 2008, the defendant purchased an apartment house and the plaintiff's children and their children live together with their children living together until they are imprised. In light of the above facts, in light of the period of separate living with the defendant and their children as well as the living types of their former wife and their children during separate period of time, the defendant's wife and his former wife were judged to have been in a de facto divorce status from October 206 to January 2014, the defendant's former wife did not accept the presumption that the defendant's wife was in a marital relationship with the plaintiff and his former wife from October 25, 2014 to June 16, 2014.

3. Determination as to the claim of consolation money

In full view of the following circumstances recognized by the purport of the above fact-finding and the entire pleadings, namely, that the Plaintiff and the Defendant are separate from around November 25, 2016 to the present day, and that both the Plaintiff and the Defendant do not wish to recover a de facto marriage relationship, it is recognized that a de facto marriage relationship between the Plaintiff and the Defendant was no longer extinguished to the extent that it can no longer be recovered. A de facto marriage relationship between the Plaintiff and the Defendant, while the Defendant left back and left back with another woman and left back without the horses, led to the failure ultimately by going against their original trust. Therefore, it is reasonable to deem that the fundamental and main responsibility for the failure of a de facto marriage exists to the Defendant.

The amount of consolation money to be paid by the Defendant to the Plaintiff shall be set at KRW 10,00,000, in consideration of various circumstances, such as the circumstance of failure in a de facto marriage and the degree of responsibility as above, the period of de facto marriage between the Plaintiff and the Defendant, and the economic power.

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day on which the plaintiff served a copy of the complaint of this case, which the plaintiff seeks as consolation money, to the day on which the defendant makes a considerable decision about the existence and scope of the obligation to pay damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, which is all repaid from the following day.

4. Determination as to the claim for division of property

(a) Property and value to be divided: It shall be as shown in the detailed statement of the property to be divided in annexed Form 1;

(b) The ratio and method of division of property;

(1) Division ratio: Plaintiff 30%, Defendant 70%

[Ground of determination] The details and status of the acquisition and use of active property subject to division, degree of contribution to the formation and maintenance by the plaintiff and the defendant, as well as the age, occupation, process and period of de facto marital life by the plaintiff and the defendant

(2) The method of division of property: taking into account the name and form of the property subject to division, acquisition details, convenience of division, etc., the respective property and debts under the Defendant’s name shall be reverted to the current name on a fixed basis; under this situation, the part of the amount ultimately reverted to the Plaintiff according to the ratio of division of property, which is short of the amount that the Defendant shall pay to the Plaintiff in cash

(3) Property division amount that the Defendant shall pay to the Plaintiff

[Calculation Form] ① The Plaintiff’s share of net property of the Plaintiff and Defendant according to the division of property

236, 941, 819 won (0 won + 236, 941, 819 won) ¡¿ 30% = 71,082, 545 won ( below won)

Brlime)

(2) Amount under paragraph (1) after deducting the Plaintiff’s net property.

71, 082, 545 - 0 won = 216,271, 308 won

[3] Division of property that the Defendant pays to the Plaintiff

② 71,000,000 won, each of which does not fall under any of the above paragraphs

C. Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 71,00,000 won as division of property and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after the conclusion of the judgment of this case to the day of full payment.

5. Conclusion

Therefore, the claim of consolation money of this case is justified within the scope of the above recognition, and the remaining claim of consolation money is dismissed as it is without merit, and it is decided as per Disposition with regard to the claim of division of property of this case as above.

Judges

Judges Cho Sung-sung