2019u20720 (principal office) Divorce

2020 u 20641 Action for a divorce

A

Section B.

Busan Family Court Decision 2017ddan10042 Decided February 8, 2018

May 20, 2020

June 24, 2020

1. The judgment of the first instance court, including the Defendant (Counterclaim Plaintiff)’s counterclaim that was filed at the trial of the first instance, shall be modified as follows:

In accordance with the principal lawsuit and counterclaim, the plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) are divorced.

2. The total costs of the lawsuit including a principal lawsuit and a counterclaim shall be borne respectively;

1. Claims;

(a) Main suit: The plaintiff (the counterclaim defendant; hereinafter referred to as the "Plaintiff") and the defendant (the counterclaim plaintiff; hereinafter referred to as the "Plaintiff") based on the main suit;

'Defendant' is divorced.

B. Counterclaim: A counterclaim shall be based on the counterclaim, and the plaintiff and the defendant shall be divorced (the defendant shall reach the trial and file the counterclaim.

2) The notice was given.

2. Purport of appeal;

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The principal lawsuit and counterclaim shall also be deemed to have been filed.

1. Determination as to whether a counterclaim is lawful in an appellate court

A. The plaintiff asserts that the counterclaim is unlawful since the cause of the counterclaim differs from one another, and the defendant's counterclaim is not examined before the court below's judgment as to the cause of the counterclaim alleged by the defendant, and it is highly likely that if the defendant's counterclaim is permitted, the interests of the court of the plaintiff will be harmed. The counterclaim in the appellate court may be filed in cases where there is no possibility of undermining the interests of the other party's instance or where the other party's consent is obtained (Article 12 of the Family Litigation Act, Article 412 (1) of the Civil Procedure Act), and the substantial issue which forms the basis of the counterclaim claim in this case is against anyone who is the cause of the dissolution of marriage. Accordingly, it is reasonable to view that the counterclaim in the appellate court's appeal is not likely to lose the interests of the court of first instance in the court of first instance.

Therefore, the counterclaim of this case is legitimate, and the plaintiff's defense prior to the merits is without merit.

B. The plaintiff asserts that the appeal of this case is no benefit of appeal since it is only a complaint against the reasoning of the judgment ordering the defendant to institute a provisional action. However, the defendant asserts that the defendant's claim for divorce of the principal lawsuit with the spouse's capacity should be dismissed and that the defendant's claim for divorce of the principal lawsuit should be accepted while filing the counterclaim of this case at the trial. The defendant's subsequent appeal of this case is recognized as benefit of appeal.

shall be applicable in any case.

Therefore, the plaintiff's defense prior to the above merits is without merit.

2. Facts of recognition;

A. On July 201, Plaintiff 201, while studying in the Republic of Korea to the Philippines, came to teach with Defendant, and filed a marriage report on July 2012. The Plaintiff and Defendant began to live together in Korea from the end of 2012.

B. On May 1, 2014, the Plaintiff and the Defendant came to know that the Defendant was hiding the fact of marriage and was in contact with other women. The Plaintiff sent the above women a Kakaox message to the effect that he would be hedging with the Defendant, and that the said women would stop contact with the Defendant. After that, the Defendant attempted to contact with the above women by SNS (social relation network services) and e-mail until the end of July 2014, the said women became aware of this fact. On August 1, 2014, the Plaintiff, the Defendant, and the above women, were divided into conversationss through the Kakaox Ma, and the Defendant, and the above women, were criticized for the Plaintiff’s unlawful act by asserting that the Defendant did not constitute an unlawful act. The Plaintiff’s family members were aware of the Plaintiff’s unlawful act on May 29, 2015.

D. From September 20, 2015, Plaintiff and Defendant have been employed until now.

[Ground of recognition] Gap evidence Nos. 1 through 5, 9 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1 through 4, 7 through 9, 11, and the purpose of the whole pleadings, images and arguments

3. Determination on the principal lawsuit and each counterclaim

(a) The principal lawsuit and the claim for divorce against retirement: Each cite on the grounds of Article 840 subparagraph 6 of the Civil Act;

B. The ground for judgment 1) Recognition of the failure of marriage relationship: In light of the above-mentioned facts and the circumstances revealed in the overall purport of pleadings, such as the content of conflict between the couple, the Plaintiff and the Defendant have a long-term separation from September 20, 2015 to the present, and both the Plaintiff and the Defendant wishing to divorce, the marriage relationship between the Plaintiff and the Defendant has already been extinguished to the extent that it is impossible to recover. (2) The principal responsibility of the marriage relationship between the Plaintiff and the Defendant was extinguished to the extent that it is impossible to recover. In light of the above-mentioned facts and the circumstances leading up to the failure of the marriage relationship recognized by each of the evidence mentioned above, the cause of the failure of marriage in this case was not caused by the entire responsibility of either party, but rather caused by both mistakes.

The plaintiff asserts that the marriage relationship was broken down due to the defendant's fault, such as assaulting the plaintiff and failing to financially support the plaintiff, and the defendant asserts that the marriage relationship was broken down due to the plaintiff's improper act (the defendant asserts that the plaintiff was living a normal marital life with respect to an act that is inappropriate for the defendant at the early stage of marriage) but the evidence submitted by the plaintiff and the defendant alone are insufficient to recognize that the marriage relationship was broken down due to the plaintiff's fault beyond the facts acknowledged earlier, which is the main cause of the plaintiff's fault, and therefore, the plaintiff and the defendant's argument are not accepted.

C. Sub-committee

Therefore, since the principal lawsuit of this case and each counterclaim are with grounds under Article 840 subparagraph 6 of the Civil Code, they are divorced from the plaintiff by the principal lawsuit and counterclaim.

4. Conclusion

The plaintiff's principal lawsuit and the defendant's counterclaim should be accepted for all reasons, and the judgment of the court of first instance, including the defendant's counterclaim claim filed in the court of first instance, shall be modified as above.

Judge Lee Il-ju

Judge O Sang-hun

Judges Dogdogia