2014Dhap20101 Divorce, etc.

RAA (*********** 2**********))

Busan Address

Busan District Court

Law Firm Doz.

(************************))

Busan Address

Busan District Court

(************ 2**********)

Busan Address

[Defendant-Appellant]

MaD (*********** 2***********))

Busan Address

Busan District Court

November 12, 2015

December 24, 2015

1. The plaintiff and the defendant JeongB shall be divorced.

2. Defendant Party B shall pay to the Plaintiff 30,00,000 won as consolation money, and the amount calculated by applying 5% per annum to the Plaintiff on December 24, 2015, and 15% per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims for consolation money against defendant JungB and the defendant SoCC respectively.

4. Defendant Party BB shall pay to the Plaintiff the amount of KRW 58,00,000, and the amount calculated by the rate of 5% per annum from the day after the day when the judgment became final and conclusive to the Plaintiff.

5. The plaintiff shall be designated as a person with parental authority and a custodian of the principal of the case.

6. From January 3, 2015 to the day before the principal of the case reaches the age of majority, Defendant JeongB shall pay to the Plaintiff KRW 1,00,000 per month as the child support of the principal of the case at the end of each month.

7. Defendant JeongB may visit the principal of the case from 00 to 18:00 each month until the principal of the case becomes adult. The above schedule may be changed through subsequent consultation, and shall be conducted by respecting the will of the principal of the case to the maximum extent possible.

8. The costs of lawsuit between the Plaintiff and Defendant HaB shall be 40% of them shall be borne by the Plaintiff, the remainder by Defendant HaB, and the costs of lawsuit between the Plaintiff and Defendant DanCC shall be borne by the Plaintiff.

19.Paragraphs 2 and 6 can be provisionally executed.

The damages for consolation money shall be paid to the Plaintiff as set forth in paragraphs 1 and 5 of the Disposition, and the amount calculated by the ratio of 20% per annum from the date of the decision to the date of full payment with respect to each of the costs of KRW 50,000,000 and KRW 20% per annum from the date of the decision to the date of the full payment with respect to each of the costs of KRW 123,450,000, and the amount calculated by the ratio of 20% per annum from the day following the date of the decision to the date of full payment with respect to property division, shall be paid to the Plaintiff, and the principal shall pay KRW 1,70,000 per annum from the day of the delivery of the copy of the complaint of this case to the date of full payment with respect to the child support of the principal of this case.

1. Facts of recognition;

A. The plaintiff and defendant JeongB completed the marriage report on December 17, 1996, and had the principal of the case under the chain.

B. Defendant JeongB, as a herb doctor, was operated in Busan on November 1, 1996, with only one Council member "," and from November 1, 1999, he received benefits from the Plaintiff's father ****** hospital. During that process, he was dissatisfied with the Plaintiff's father's unreasonable treatment in relation to the division of work, salary, working conditions, etc.

C. Defendant HaB was unable to receive benefits from time due to the difficulties in the operation of the hospital around 2004 ***** this led to frequent disputes between the Plaintiff and the Plaintiff.

D. Defendant JeongB retired from her time, and operated 'the above'******** the Gu***** the Gu's ‘the Council member of JeongB' in her**, while opening and operating 'the Council member of JungB' around 209 ************************* (hereinafter referred to as the "the business of this case") up to now.

E. From around 2004, Defendant AB opened the above “AB Council member” to Defendant AB, the mother, from around 2004, granted part of the Plaintiff’s revenues from Korea to Defendant AbCC. However, Defendant AB did not inform the Plaintiff of the details of the Plaintiff’s revenues and expenditures and did not cause the Plaintiff to be paid a certain amount of living expenses. However, there was a complaint about Defendant AbCC from time to time to time.

F. On July 8, 2011, Defendant JungB obtained loans of KRW 280,7100,000 from the New Bank, and thereafter, on September 9, 201, 201, ***************************** (hereinafter referred to as the “instant apartment”). From that time, the Plaintiff and the Defendant resided in the said apartment.

G. Defendant AB was also liable for a loan to the foreign exchange bank, Han Bank, etc., but, around 2014, the Plaintiff offered that the Plaintiff would dispose of the instant apartment and repay the loan. However, the Plaintiff refused this. The Plaintiff and the Defendant did not seek mutual opinions on the foregoing issue, and the Plaintiff filed the instant lawsuit on December 8, 2014.

[Ground of recognition] Each entry of Gap evidence 5-1, 2, Eul evidence 4 through 7, and 11 through 14 (including each number, if any) and the purport of the whole pleadings

2. Determination as to the claim for divorce and consolation money against Defendant Party BB

(a) A claim for divorce: there are reasons under Article 840 subparagraphs 3 and 6 of the Civil Act;

(b) Claim for consolation money: 30,000, 000 won;

[Grounds for Determination]

(1) Recognition of marital failure: Various circumstances such as the fact that both the plaintiff and the defendant JungB want a divorce, and the fact that it seems difficult to recover trust and continue the marital life.

(2) The main responsibility for the failure of marriage lies in Defendant 1B.

The plaintiff is entitled to unfair treatment on the grounds of divorce, such as economic abandonment, assault and verbal abuse, insult, denial of marital relationship, religious coercion, etc. of defendant JeongB.

In light of the facts acknowledged earlier and the purport of the entire pleadings, even though the Plaintiff was negligent by understanding the economic situation faced by Defendant JungB and neglecting to endeavor to support the Plaintiff, it appears that the Plaintiff’s attitude appears to have been due to the Plaintiff’s mistake in managing and disposing of the Plaintiff solely without properly notifying the Plaintiff of the financial situation of the Plaintiff, while managing and disposing of the proceeds. Accordingly, the Defendant JungB’s responsibility for causing the failure of the instant marriage is more important.

In addition, the reason for the remaining failure of the Plaintiff’s assertion is insufficient to acknowledge the fact of the assertion only by the evidence submitted to this court, or it is difficult to deem that the cause of marriage has occurred by itself, and thus, it is not acceptable as the ground for divorce of this case.

3. Liability and amount of consolation money payment

Defendant UB has a duty to pay consolation money for mental distress sustained by the Plaintiff due to the failure of a matrimonial relationship. The amount was determined by taking into account all the circumstances shown in the arguments, such as the cause and degree of responsibility of the marriage dissolution as seen earlier, the period of marriage of the Plaintiff and the Defendant, the age, occupation and economic power, etc.

C. Sub-determination

Therefore, the Plaintiff and Defendant HaB are divorced, and Defendant HaB is obligated to pay to the Plaintiff the consolation money of KRW 30,00,000, and the marriage relationship with the Plaintiff, and the damages for delay calculated at the rate of 5% per annum per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date of this decision, and the date of full payment from the following day to the date of full payment, as sought by the Plaintiff.

3. Determination as to the claim for division of property against Defendant LaborB

A. Details about the formation of the property;

During the marriage period, Defendant HaB was an oriental medical doctor as described in the above 1. Paragraph, and the Plaintiff was in exclusive charge of domestic affairs and child care.

(b) Property subject to division;

1) Plaintiff’s active and negative property: None of the following:

2) Active property of Defendant JeongB: The apartment of this case 403,000,000

3) Small property by Defendant AB: 287, 100, 000 won for a new bank loan.

(c) The value of property to be divided;

1) Plaintiff’s net property: 0 won

2) Net property of Defendant JeongB: 115,90,00 won ( = 403,00,000 of the instant apartment complex = 287, 100, 100,000 won for the instant apartment complex)

3) Total amount of net property: 115, 900, 000

[Ground of recognition] Evidence No. 5-1, Evidence No. 4 and No. 15, and the purport of the whole pleadings

(d) Property excluded from the division;

1) Judgment on the Plaintiff’s assertion

The Plaintiff asserts that the instant commercial building in the name of Defendant DamageCC is the property of Defendant JeongB, and should be included in the subdivision.

In light of the purport of Gap evidence No. 5-2 as to the commercial building of this case and the purport of the whole pleadings as seen earlier, the defendant Sob shall complete the registration of ownership transfer on February 15, 2008 with respect to the commercial building of this case, and the defendant Sob shall complete the registration of ownership transfer on February 10, 209 with respect to the maximum debt amount of 156,000,000,000, the debtor, the debtor, the debtor, the debtor, the debtor, the first-dong community credit cooperative of the Seocho-dong Saemaul, and the defendant SoB remitted the secured debt repayment funds to the defendant Sob from around February 2, 2010. However, the above recognition alone is insufficient to recognize that the owner of the commercial building of this case is the actual owner of the commercial building of this case, and thus, the plaintiff's assertion is not acceptable.

2) Determination on Defendant 1B’s assertion

A) Defendant Party AB asserted that, on March 30, 2015, the loan debt of KRW 10 million against KimE should be included in the subject of pro rata property portion. However, the loan debt was incurred during the instant divorce lawsuit following the dissolution of marriage, and the purpose of the loan is not recognized as property division, since there is no evidence to acknowledge that the purpose of the loan was an expenditure for the formation and maintenance of the couple’s common property.

B) In the case of divorce, a couple’s debt owed by one of the married couple to a third party shall be subject to division of property even if it was borne by the couple’s joint property formation or if it was borne in the course of raising necessary expenses in the marital relationship (see, e.g., Supreme Court Decision 92Meu501, May 25, 1993). The defendant JeongB asserts that the debt owed by one of the married couple to a third party shall be subject to division of property (see, e.g., Supreme Court Decision 92Meu501, May 25, 1993) 49,000 foreign exchange bank loans in its name, KRW 27,320,00,00, 1 bank loans, KRW 27,320,019, and KRW 67,249,090 shall be subject to division of property.

(4) According to the fact-finding results and arguments about the above 0B lending to Defendant 1, 200 won in total at around 207, and 50, 200 won in corporate exchange banks and 00 won were extended to Defendant 1, 300,000 won in corporate loan and 00 won. Around 2011, 200, 300 won was additionally extended to Defendant 2, 100,000 won out of 00,000 won were extended to Defendant 2, 300,000 won were not available to Defendant 2, 10,0000,000,000,000,000,000,000 won, *** ** ** * * * 14,000,000,000 won out of 20,000 won.

(e) Ratio and method of division of property;

1) Division ratio: Plaintiff 50%, Defendant HaBB 50%

[Ground of determination] The degree of contribution of the plaintiff and the above defendant to the formation and maintenance of the property subject to division as seen above, and other circumstances shown in the argument of this case, such as the process, period, reason for failure of marriage, the original and defendant's age, and future income activities

2) Method of division of property: In light of the name and form of the property to be divided, the grounds for acquisition and the use of the property, the convenience of division, etc., the part of the amount to be reverted to the Plaintiff according to the above division ratio is determined to be paid by Defendant JeongB in money to the Plaintiff.

3) Property division amount to be paid by Defendant JeongB to the Plaintiff: 58,000,000 won

【Calculation Form】

① The Plaintiff’s share according to the division rate of property among the net property of the Plaintiff and Defendant JeongB

Total net property 115, 900, 000 won x 50% = 57, 950, 000 won

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

57, 950, 000 won - zero won = 57,950,00 won

[3] Property division amount to be paid by Defendant LaborB to the Plaintiff

② The amount set forth in the above paragraph is 58,00,000 won for a little amount set forth in the above paragraph.

F. Sub-determination

Therefore, Defendant Party B is obligated to pay the Plaintiff the amount of KRW 58,00,000, and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment became final and conclusive to the day of full payment.

4. Determination as to designation of a person with parental authority, a person with parental authority, a claim for child support, and visitation right (ex officio)

(a) Person with parental authority and custodian: Designating a plaintiff;

[Ground of determination] Various circumstances shown in the argument of this case, including the plaintiff and defendant JungB's marital life and failure failure, the age and custody of the principal of this case, the situation of the parties, etc.

(b) Child support: Payment of one million won per month as of the last day of each month.

[Ground of determination] The job, economic ability, age and parenting status of the principal of the case, and other circumstances of the plaintiff and the defendant

(c) Interview (ex officio).

Since non-nurt-care parents have the right to interview with the principal of this case unless it is contrary to the welfare of the principal of this case, in consideration of all the circumstances revealed in the arguments of this case, such as the age, parenting situation of the principal of this case, and the degree of contact with the principal of this case, it is reasonable to determine visitation rights as described in paragraph (7) of this case for the emotional stability and welfare of the principal of this case.

5. Determination as to the claim of consolation money against Defendant DamageCC

The plaintiff asserts that since the marital relationship of this case was broken down due to the unfair treatment of the defendant SoCC, the defendant SoCC had a duty to pay consolation money to the plaintiff, because it neglected the plaintiff's parent and forced the plaintiff to engage in religious activities, and acquired real estate by reducing the income of the defendant SoB, etc., the defendant SoCC has a duty to pay consolation money to the plaintiff.

First, as seen earlier, Defendant DamageCC received money from Defendant U.S.B from time to time and used it to repay the loan, etc. However, such fact alone is difficult to readily conclude that Defendant U.S. had intentionally participated in the process of having the Plaintiff economically alienated. Furthermore, even if Defendant U.S. gather evidence submitted to this court, it is insufficient to find it difficult to recognize that Defendant U.S.C. suffered unfair treatment as alleged by the Plaintiff and its parents as well as that of the Plaintiff, or that the instant marital relationship has reached the bankruptcy. Accordingly, the Plaintiff’s claim for consolation money against Defendant U.S. cannot be accepted.

6. Conclusion

If so, the plaintiff's claim for divorce against the defendant JungB is justified, and the claim for consolation money against the defendant JungB shall be accepted within the scope of the above recognition, and the remaining claim for consolation money shall be dismissed as it is not paid. The claim against the defendant SoCC shall be dismissed as it is without merit, and it shall be decided as above with regard to division of property, designation of person with parental authority and person with parental authority, child support and visitation right (ex officio), and it shall be decided as above.

Judges Do-constition

Judges Kim Jin-jin

Judges Park Jong-hee