2015Reu94 (principal office), divorce, etc.

2015Reu100 (Counterclaim), divorce, etc.

Appellant-Appellants

WhiteA********************)**)

Busan Address

Busan place of service

reference domicile Gyeong-nam

Attorney Lee Do-young

Appellant-Appellant

DeB (********************)**)

Busan Address

reference domicile Gyeong-nam

Law Firm Doz.

Busan Family Court Decision 2013Ddan5820 (main office), 20836 (Ban) decided January 21, 2015

[Lawsuit] Judgment

August 20, 2015

November 26, 2015

1. Of the judgment of the court of first instance, each part of the principal lawsuit and counterclaim for division of property shall be modified as follows:

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) the amount of KRW 116,00,000 as division of property and the interest rate of KRW 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. All appeals as to the counterclaim divorce of the Plaintiff (Counterclaim Defendant), the part on the claim of consolation money, the divorce of the Defendant (Counterclaim Plaintiff) and the part on the claim of consolation money shall be dismissed.

3. The total costs of a lawsuit shall be borne by each party, including a principal lawsuit and a counterclaim.

1. Purport of claim

A. Main Action: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced by the principal action. The defendant shall pay to the plaintiff 40 million won as consolation money and the amount calculated by the rate of 20% per annum from the day following the delivery of a copy of the claim and the application for modification of the cause of the claim on August 22, 2013 to the day of complete payment. The defendant shall pay to the plaintiff 147,659,007 won as division of property and the amount calculated by the rate of 5% per annum from the day following the day when the judgment became final to the day of complete payment.

B. Counterclaim: The plaintiff shall be divorced by the counterclaim. The plaintiff shall pay to the defendant 50 million won as consolation money and the amount calculated by the rate of 20% per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment. The plaintiff shall pay to the defendant 38 million won as division of property and the amount calculated by the rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

A. Plaintiff: The part of the judgment of the first instance is revoked. The Defendant’s counterclaim divorce claim is dismissed. The Defendant shall pay to the Plaintiff consolation money of KRW 20 million and the amount calculated by the rate of 20% per annum from April 3, 2013 to the date of full payment. The part of the principal lawsuit and counterclaim property division in the judgment of the first instance is modified as follows. The Defendant shall pay to the Plaintiff the amount calculated by the rate of 5% per annum from the day following the day of the final judgment to the day of full payment. The Defendant shall pay to the Plaintiff the amount calculated by the division of property of KRW 147,659,007 and the amount calculated by the rate of 147,659

B. Defendant: In the judgment of the first instance court, the part concerning the claim for consolation money for divorce and counterclaim is revoked. The Plaintiff’s claim for divorce is dismissed. The Plaintiff shall pay consolation money of KRW 50 million and the amount calculated by the rate of 20% per annum to the Defendant from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment. The part concerning the principal and counterclaim division of property in the judgment of the first instance shall be modified as follows. The Plaintiff shall pay to the Defendant the amount calculated by the rate of 5% per annum from the day following the day when this judgment becomes final and conclusive to the day of full payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Determination on the claim for divorce and consolation money

(a) Facts of recognition;

1) On April 27, 1994, the Plaintiff and the Defendant were legally married couple who completed the marriage report, and had her husband and wife (19*) with his father and wife.

2) The Plaintiff and the Defendant frequently disputed from the beginning of marriage to the difference in economic issues, characteristics and values, etc., and expressed verbal abuse and abusive language to each other, and committed assault. In particular, from around 2007, the Plaintiff and the Defendant became more frequently disputed with the Plaintiff and the Defendant.

3) In the process, around March 2010, the Defendant assaulted the Plaintiff’s chest, such as riding the Plaintiff’s chest, and around May 201, the Plaintiff satisfing the Plaintiff’s face. On February 10, 2012, the Defendant reported the Plaintiff’s securities card inside the Plaintiff’s wall and asked the Plaintiff to “whether a certain male and a securities were carried out” and inflicted an injury upon the Plaintiff, such as drinking the Plaintiff’s head and drinking the Plaintiff’s neck.

4) Meanwhile, around December 201, the Plaintiff came to know of Maddices, and met frequently with them, and received text messages from time to time.

5) At around March 12, 2013, the Defendant: (a) committed assault on a HaCC, which was in a room, on the part of the Defendant, on the part of a woman’s visit, on the part of a woman, on the said HaCC, on the part of a lusium and a lusium, on the part of a lusium, on the lusium and a lusium face.

6) On March 15, 2013, the Plaintiff filed the instant principal suit.

7) On September 7, 2013, while the Defendant suspected of the Plaintiff’s external rating and did not go to the Plaintiff, the Plaintiff and Maddddddd Do were found to have been accommodated in the Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Madd Ma

8) The Defendant filed the instant counterclaim on September 11, 2013.

9) On November 27, 2013, the Defendant received a ruling on a family protective disposition ordering six months, etc. to be put on probation (2013 but 115) for criminal facts under paragraphs (3) and (5) of the above Article.

[인정근거] 갑 제1 내지 4, 6 내지 11, 14 내지 20, 22, 23, 24호증(가지번호 있는 것은 가지번호 포함, 이하 같다), 을 제1, 2, 5, 7 내지 11, 15호증, ***정신건강의학과의 원장 ***, 에스케이텔레콤㈜), ㈜엘지유플러스, 케이티에 대한 각 사실조회 결과, 변론 전체의 취지

B. Determination

1) Claim for divorce against the principal lawsuit and counterclaim

A) Main suit: Reasons under Article 840 subparag. 3 and 6 of the Civil Act

B) Counterclaim: Reasons under Article 840 subparag. 1, 3, and 6 of the Civil Act

2) Claim for consolation money for each principal lawsuit and counterclaim: None of the grounds therefor.

【Reasons for Determination】

① Recognition of the failure of marriage: Taking into account the following circumstances: (a) the above recognition of the failure of marriage; and (b) the Plaintiff and the Defendant wished to divorce through a counterclaim with the instant principal lawsuit; (c) the Plaintiff and the Defendant did not make any particular effort to recover the marriage even after each of the instant lawsuits; and (d) the Plaintiff and the Defendant seem to have aggravated the marriage between the Plaintiff and the Defendant to the extent that they could not recover.

② The liability for failure of the marriage of this case is equal to that of the plaintiff and the defendant: verbal abuse, assault, and unfair treatment of the plaintiff; and the defendant cited verbal abuse, assault, home care, alcohol addiction, and other unlawful acts of the plaintiff. In light of the overall purport of arguments in the above-mentioned facts, the plaintiff and the defendant continued to have verbal abuse and assault against the other party, rather than trying to keep conflict continuously during the marriage period, but with understanding and consideration, and the plaintiff appeared to be far from the defendant and the family; and the defendant appeared to have more serious verbal abuse and assault against the plaintiff and the above low-CC; thus, the marriage of this case led to the situation where the plaintiff and the above low-income defendant were unable to observe. Accordingly, the liability for failure of the marriage of this case is equal to both the plaintiff and the defendant, and the degree of liability is equal. In addition, the defendant's lack of evidence or lack of evidence to prove that the marriage of this case is not sufficient.

C. Sub-decision

Therefore, the plaintiff and the defendant are divorced by the principal lawsuit and the counterclaim, and the plaintiff's claim for consolation money and the defendant's counterclaim consolation money are dismissed.

2. Determination on the claim for division of property

(a) Details of property formation;

1) The Plaintiff worked for an insurance company, etc. while taking charge of household affairs and rearing during the marriage period, and worked as a store at a large discount store from around 2007 to August 2013.

2) The defendant, while working as a driver during the marriage period, is working from June 2006 to *** (hereinafter referred to as "* metal").

3) On June 2007, the Plaintiff and the Defendant combined with the money collected by the Plaintiff and the Defendant in Busan* Dong** 25 million won a deposit for the lease of an apartment, the amount of KRW 27 million abundent of the Defendant’s parents, the amount of KRW 40 million abundled by the Defendant, etc., and leased the money collected by the Plaintiff and the Defendant ** Dong********* of apartment** Dong*** the lease deposit.

4) On June 8, 2009, the plaintiff and the defendant combined with the above lease deposit and bank loans of KRW 60 million and completed the registration of ownership transfer in the name of the defendant on June 18, 2009 after purchasing the above lease deposit and bank loans of KRW 60 million* Dong***************** (hereinafter referred to as "****").

(b) Property and value to be divided;

(1) Property subject to division: The same is as indicated in the separate sheet of property division (the property subject to division shall be limited to the value exceeding KRW 100,000 as of March 14, 201, which is the day immediately preceding the filing of the principal lawsuit in this case, at the time when the failure of the principal lawsuit in the marriage between the plaintiff and the defendant becomes substantially final and conclusive, but the following changes shall be reflected in consideration of the joint contribution of the couple).

(2) The value of the property to be divided;

(a) Plaintiff’s net property: KRW 7,370,202

(B) The defendant's net property: 302,359,764 won

(C) Net property of the plaintiff and the defendant: 309,729,966 won

[Based on recognition] Gap evidence Nos. 5, 12, 21, 24, Eul evidence Nos. 2, 4, and 12 (including each number, if any), Eul evidence Nos. 2, 4, and 12 of the court of the first instance; the head of the Suwon Tax Office of Jun. 11, 2013 of the court of the first instance; the head of the Korea Labor Welfare Corporation of Busan Northern Vice-Governor; the decision-making bank of the first instance court; the metal and week* the fact-finding results of each inquiry into unemployment; the National Bank of June 12, 2013 of the court of the first instance; the Busan Bank of Jun. 21, 2013; and the purport of all pleadings as a result of each order to submit financial transaction information to one bank of the first instance on Jan.

C. Determination as to the assertion on the property subject to division

1) The Defendant asserted that the Plaintiff’s total amount of KRW 98,395,282 paid from January 2010 to May 2013 should be included in the Plaintiff’s active property while the Plaintiff’s work as the store for large discount stores. However, there is no evidence to acknowledge that the Plaintiff had the said money at the time of property division.

(2) The defendant asserts that the above amount should be included in the plaintiff's active property since the plaintiff received benefits of KRW 195,895,780 from January 1, 2010 to May 2013, 2013 from****,**, etc., the defendant argued that the above amount should be included in the plaintiff's active property. However, in light of the statement of No. 25, Oct. 20, 2014 and the No. 30, No. 1285, Oct. 30, 2014; the results of the order issued to submit each financial transaction information to the Bank to Korea on Nov. 7, 2014; and the fact-finding on both Korea Labor Welfare Corporation as of Jul. 20, 2015, the result of each order issued to submit financial transaction information from the court of first instance to the Nonghyup Bank as of Aug. 12, 2013 does not have any evidence to acknowledge that the plaintiff received benefits from the above company or otherwise.

(d) Ratio and method of division of property;

(1) Division ratio: Plaintiff 40%, Defendant 60%

[Ground of determination] The degree of contribution of the plaintiff and the defendant to the formation and maintenance of the property subject to division as seen earlier, the course and period of the marital life in this case, the age, occupation, and time of acquisition of each of the original and the defendant's property subject to division

Various circumstances shown in the argument of this case, including circumstances

(2) Method of division of property: The part of the property in the name of the plaintiff and the defendant shall be determined by the ownership, and the part of the amount that should be reverted to the plaintiff according to the division ratio of property shall be paid to the plaintiff.

(3) Property division amount to be paid by the Defendant to the Plaintiff: 16,000,000 won

【Calculation Form】

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

(2) The amount obtained by deducting the Plaintiff’s net property from the amount under the above paragraph (1) 123,891,986 won - 7,370,202 won = 116,520 won x 116,521,784 won

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

② Amount set forth in the above paragraph 16,000,000 won less than the amount set forth in the above paragraph

E. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff 16,00,000 won as division of property and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day after this judgment becomes final and conclusive to the day after full payment is made.

3. Conclusion

Therefore, all of the plaintiff's claims for divorce against the principal lawsuit and the defendant's counterclaim are accepted, and all of the claims for consolation money and counterclaim are dismissed, without merit. All of the claims for division of the principal lawsuit and counterclaims are reasonable as above. Since the part of divorce and consolation money among the judgment of the first instance is justified as it is consistent with this conclusion, each of the appeals by the plaintiff and the defendant is dismissed as without merit, and since the part of the judgment of the first instance is unfair as it is concluded differently, the part of division of the property in the judgment of the first instance is to be modified as above. It is so decided as per Disposition.

The presiding judge, associate judge

Judges Kim Gin-jin

Judges Park Jong-hee