2017Dhap201296 (Divorce, etc.)

2017Dhap201425 (Counterclaim) Divorce and consolation money

Section B.

1. Sick:

2. Fixedness;

August 23, 2018

October 11, 2018

1. The plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced by counterclaim.

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 20,00,000 consolation money with 5% per annum from August 1, 2017 to October 11, 2018, and 15% per annum from the next day to the date of full payment.

3. Plaintiff (Counterclaim Defendant)’s claim for divorce and consolation money against the principal lawsuit and Defendant (Counterclaim Plaintiff)’s claim against the remainder of the counterclaim is dismissed, respectively.

4. The plaintiff (Counterclaim defendant) pays to the defendant (Counterclaim plaintiff) 48,00,00 won as division of property and 5% interest per annum from the day following the day of this judgment to the day of full payment.

5. To designate the Defendant (Counterclaim Plaintiff) as a person with parental authority and custodian of the principal of the case.

6. The plaintiff (Counterclaim defendant) delivered the principal of the case to the defendant (Counterclaim defendant).

7. The Plaintiff (Counterclaim Defendant) shall pay 600,000 won per month to the Defendant (Counterclaim Plaintiff) for the child support for the instant principal Byung as of October 12, 2018 as of the last day of each month until December 25, 2027, respectively, from October 25, 2018. The Plaintiff (Counterclaim Defendant) shall pay 600,000 won per month from the day following the date of delivery of the instant principal principal to the child support for the instant principal Byung, and shall pay 60,000 won per month as of June 10, 2031.

8. The Plaintiff (Counterclaim Defendant) may visit the instant principal by the following day before the principal reaches each adult age. The Defendant (Counterclaim Plaintiff) shall actively cooperate with the above visitation, and shall not interfere with this.

(a) A schedule: Second month, fourth Sundays 10 to 18: 00; and

(b) Place: The place that is designated by the plaintiff (Counterclaim defendant);

(c) Method: The method by which the plaintiff (Counterclaim defendant) delivered the principal of the case in the place of residence of the principal of the case or the head of the lawsuit promised with the defendant (Counterclaim plaintiff) by safe and appropriate means, and then delivered the principal of the case in the above Chapter.

D. The Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) may, through prior consultation, change the schedule, place, and method of the visitation right, and hold visitation rights by respecting the welfare of the principal of the case as much as possible.

9. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant) for 80% of the total costs of the principal lawsuit and counterclaim, and the remainder is assessed against Defendant (Counterclaim Plaintiff) for each of them.

10.Paragraphs 2, 6, and 7 may be provisionally executed.

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") are divorced. The defendant shall pay the plaintiff 50,00,000 consolation money with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment, and shall pay the plaintiff 200,000,000 won with 5% interest per annum from the day following the day of the final judgment to the day of full payment. The plaintiff shall be designated as a person with parental authority and guardian for the principal of this case. The defendant shall deliver to the plaintiff a copy of the complaint of this case as child support for the principal of this case to the day of full payment. The defendant shall pay the plaintiff 1,50,000 won from the day following the day of service of a copy of the complaint of this case to December 25, 207, and the last day of 00,000 won from the day of October 1, 200.

Counterclaim: Disposition Nos. 1, 5 and the plaintiff shall pay to the defendant 50,00 won as consolation money, 00,000 won as well as 15% interest per annum from the day following the day of service of a copy of the counterclaim of this case to the day of complete payment. It shall pay to the defendant 135, 582, 841 won as division of property, and 5% interest per annum from the day following the day of this judgment to the day of full payment. The plaintiff shall pay to the defendant 1,20,000 won as child support for the principal of this case by December 25, 2027, and from the following day to June 10, 2031, the amount shall be paid at the end of each month.

A principal lawsuit and a counterclaim shall also be deemed to be a counterclaim.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report on June 7, 2003, and have a minor case principal as a child between them.

B. On April 2016, the Plaintiff came to know about 00 in the golf club. On April 28, 2017, the Defendant: (a) installed a tape recorder on the Plaintiff’s vehicle with the Plaintiff’s suspicion of the Plaintiff’s improper conduct; (b) sought a recording file of conversations with the Plaintiff’s high-priced yellow 00, and sought a recording file on the part of the Plaintiff; and (c) made a marriage with the Plaintiff with the Plaintiff’s scam and cut the Plaintiff’s conspiracy.

다 . 황00은 2017 . 5 . 11 . 원고에게 " 신랑 잘하고 있어 ? " , " 톡도 안보고 전화 바로 끄 고 둘이 뭐하는데 " , " 그래놓고 내 사랑한다하고 " , " 와 미치겠네 . 전화하니 재끼더니 . 둘 이 뒹굴고이자지치가자고있나 " , " 이래놓고 나보고 사랑한다하고 " , " 한번도 전화안하덩 산 . 아저씨랑 있는다고 내 잊었네 " 등의 카카오톡 메세지를 보냈다 . 원고는 2017 . 5 . 15 . 황00과 문자를 보내며 원고의 음모를 깎은 일에 대하여 , " 혹시 나중 목요카서 밑에 늘 뭐라하지 ? " , " 수건막고 들어가서 샤워만 하믄된다 " , " 앞번에도 그랬어 " , " 씨발새끼 " , " 내 털 내가 관리잘하께ㅋ " , " 잘지우고 " , " 오빠만 있음 돼 " , " 이쁘다 잘놀아 " 등의 카카 오톡 메세지를 주고받았다 .

라 . 원고는 황00에게 2016 . 12 . 13 . 3 , 000만 원을 대여해주었다 . 원고는 2017 . 5 . 17 . 황00에게 빌라의 매매대금 중 7 , 000만 원을 대여해주었다 . 원고와 황00은 피고로 부터 위 돈을 돌려달라는 요구를 받자 이를 김00 회장에게 투자하였다고 거짓말하며 김00 명의의 확인서를 위조하여 피고에게 제시하였다 . 원고와 황00은 이로 인하여 2018 . 7 . 16 . 사문서위조 및 동 행사죄로 각 징역 1년에 집행유예 2년을 선고받았다 . 원고는 2017 . 5 . 20 . 사건본인 정과 함께 황00을 만나고 밤늦게 귀가하였고 , 피고는 이 사실을 알고 원고에게 욕설을 하고 맥주병을 던지며 화를 냈다 . 피고는 2017 . 5 . 21 . 원고에게 황00과의 내연관계를 추궁하며 부부싸움을 하다가 원고의 핸드폰을 부쉈다 .

E. On May 23, 2017, the Plaintiff contested with the Defendant and the instant principal, and leased Nos. 000 at Meart City on May 25, 2017. On May 26, 2017, the Plaintiff and Yellow 00 registered each of the Plaintiff and yellow 00 vehicles at the management office of Meart City 000, respectively.

F. On June 3, 2017, the Plaintiff returned to Meart City, but the Plaintiff and Yellow 00 freely visited at Meart City 000. Even thereafter, the Plaintiff and Yellow 00 freely passed. The Plaintiff: (a) had a food of yellow 00 from Lmerart City 00 to elmeras City 000, she had a head, her head, her head, and her clothes; and (b) had a bicycle riding together with yellow 00.

G. On June 3, 2017, the day of returning home, the Plaintiff asserted that the Defendant detained him/her, and filed a report on 119. The Plaintiff was issued a medical certificate stating that he/she suffered an injury requiring medical treatment for a period of time on June 5, 2017. On July 6, 2017, the Defendant came to know that the Plaintiff was going to and from 00 Meat City 00, along with Meat City 00. On July 8, 2017, the Plaintiff provided a couple’s fighting while taking a bath to the Plaintiff. In the process, the Plaintiff asserted that the Defendant ought to take care of himself/herself, and reported it to 119.

H. The Defendant filed a lawsuit claiming damages against Yellow 00, and the above case was transferred to Busan Family Law Board and is currently pending in the lawsuit.

I. The Plaintiff had been in office around July 10, 2017, and the Plaintiff and the Defendant have been in office since that time.

[Grounds for recognition] Each entry of Gap evidence Nos. 1 through 9, 36, Eul evidence Nos. 1, 3, 5, 8, 19, 21, 22, 25, and 41 through 43 (including each number; hereinafter the same shall apply)

2. Determination as to divorce and claim

A. Counterclaim divorce claim: there are reasons under Article 840 subparag. 1 and 6 of the Civil Act

(b) Claim for solatium consolation money: 20,000,000 won;

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances such as the fact that both the plaintiff and the defendant desire to divorce, the loss of trust in each other, and the possibility of continuing the marriage life seems to exist in the future.

② The Plaintiff is mainly responsible for the failure of a matrimonial relationship: (a) the Plaintiff caused the failure of trust between the Plaintiff and the husband by committing an unlawful act; (b) this appears to have a fundamental reason for the failure of a matrimonial relationship between the Plaintiff and the Defendant; (c) without the Defendant’s consent, the Plaintiff committed an act that has a significant adverse impact on the trust relationship by lending the purchase price of a joint property of the husband and wife to 00 and forging a private document to conceal it; and (d) by seeking a separate apartment in the apartment complex located with the Defendant, in which the Defendant was living together, and maintaining the relationship of internal relationship with 00. Nevertheless, the Plaintiff filed the instant divorce lawsuit without having paid much attention to his mistake or efforts to recover the marital relationship; and (c) by denying the fact that the Plaintiff committed an unlawful act up to this court.

On the other hand, the Plaintiff asserts that the cause of the marriage is the Defendant since he/she had the burden of proof against the Defendant and habitually assaults the Plaintiff. As seen earlier, although the Defendant was at the time of the Plaintiff’s clock on April 28, 2017, it appears to be doubtful and disputing the Plaintiff’s misconduct, it is difficult to determine the remainder of the assault alleged by the Plaintiff in light of the materials submitted up to the present time. Therefore, the Plaintiff’s above assertion is rejected because it is difficult to consider the Defendant’s suspicion and assault as the main cause of the failure of the marriage.

③ The duty to pay consolation money and amount: The Plaintiff is obligated to pay consolation money for a emotional distress inflicted upon the Defendant’s emotional distress. The amount shall be determined as KRW 20,000,000, taking into consideration the following circumstances: (a) the cause and degree of responsibility of the Plaintiff due to the failure of marriage; (b) the period of marriage of the Plaintiff and the Defendant; (c) the period of marriage of the Plaintiff and the Defendant; (d) the occupation and economic power; (e) the Plaintiff’s wrongful conduct period and details; (e) the circumstances after the failure of marriage; and (e) the attitude of the party who has been

C. Sub-committee

Therefore, the plaintiff is divorced from the defendant, and the plaintiff is obligated to pay to the defendant 20,00,000 won as consolation money, and to pay damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from August 1, 2017 to October 11, 2018, which is the date of this judgment, and 15% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

3. Determination as to the claim for division of property

(a) Details about the formation and maintenance of property;

1) The Plaintiff worked in the department store from around 1995 to around 2011, and was engaged in the business of door-to-door sales of cosmetics, and was in charge of household affairs and childcare other than that. The Plaintiff is working in the cafeteria cafeteria cafeteria for about four months before the Plaintiff was punished by the amount of KRW 5 million per month. The Defendant is working in the sales business and the amount of KRW 8 million per month.

2) On October 1, 2004, the Defendant received a donation from the Defendant in the form of sale of Ba, which was under the Defendant’s name. The Plaintiff and the Defendant resided in Bara after marriage, and sold Bara in the form of KRW 11,8 million on May 17, 2017. On April 3, 2017, the Defendant leased Meat City amounting to KRW 32,200 million on the lease deposit, and the Plaintiff and the Defendant around that time moved in Meat City. The amount of the above lease guarantee was prepared as the Plaintiff’s insurance refund and the Defendant’s payment and the Defendant’s payment, KRW 240,000,000. [Grounds for recognition] The evidence, the family investigation report, the purport of the entire pleadings, and the purport of the entire pleadings.

(b) Property and value to be divided;

1) Property subject to division: Attached Table 1 is as indicated in the “Attachment 1” list of property subject to division (the object and value of property division shall be determined as of the date of closing of argument in this case: Provided, That in cases where consumption or concealment, such as money, is available and the base point of time is different, if there is a possibility of overlapping, it shall be presumed that the marriage relationship has broken down as of July 10, 2017, and the amount shall be estimated to be present and to determine the object and value of the division of property, by presumption that the marriage relationship has broken down as of July 10, 2017. However, if the Plaintiff and the Defendant make a statement by mutual consent, the value shall prevail).

2) The value of the property to be divided;

A) Plaintiff’s net property: 184, 254, 121 won

B) Defendant’s net property: 87,493,287 won

C) Total amount of net property of Won and the defendant: 271, 747, 408 won

C. Judgment on the parties’ assertion

Attached Table 1 is as shown in the column of each party's assertion and judgment in the annexed Table 1's Schedule of Property Specifications and Attached Table 2's Non-Recognized Property Statement.

(d) Ratio and method of division of property;

1) Division ratio of property: Plaintiff 50%, Defendant 50%

[Grounds for Determination]

2) The method of division of property: taking into account various circumstances revealed in the arguments in the instant case, such as the parties’ intentions, the ownership of the property subject to division as seen earlier, the process of acquisition and maintenance of the property subject to division, and the status of use, the portion out of the amount to be reverted to the Defendant according to the above division ratio shall be determined to be paid to the Plaintiff in money.

3) Property division amount to be paid by the Plaintiff to the Defendant: 48,000,000 won

【Calculation Form】

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

Total net property 271, 747, 408 won ¡¿ 50% = 135, 873, 704 won

(2) The amount under paragraph (1) minus the defendant's net property.

48, 380, 417 won ( = 135, 873, 704 won - 87, 493, 287 won)

③ Division of property that the Plaintiff pays to the Defendant

② The amount set forth in the above paragraph is 48,00,000 won, less than the amount set forth in the above paragraph

E. Sub-committee

Therefore, the Plaintiff is obligated to pay to the Defendant 48,00,000 won as a division of property and 5% interest per annum from the day following the final decision of this case to the day of full payment.

4. Determination as to the designation of a person with parental authority or a person with parental authority, delivery of a child (ex officio), child support, visitation right (ex officio)

(a) Designation of a person with parental authority and a custodian;

When all the circumstances revealed in the arguments of this case, such as the marriage life and breakdown of the plaintiff and the defendant, the friendship with the principal of this case, the family of this case, the custody situation up to the date, the intention of the parties, etc., are combined, it is reasonable to designate the defendant as the person with parental authority and the custodian of the principal of this case.

B. Delivery of the principal's definition (ex officio determination)

At present, although the plaintiff raises the principal of this case, the defendant was designated as a person with parental authority and a custodian of the principal of this case, the plaintiff is obligated to deliver the principal of this case to the defendant.

(c) Child support;

1) Occurrence of obligation to pay child support

As the mother of the principal of this case is responsible for fostering the principal of this case together with the defendant, the plaintiff is obligated to pay the child support for the principal of this case to the defendant.

2) Amount of future childcare expenses to be paid by the Plaintiff

The plaintiff shall pay 600,000 won per person of the principal of the case from the day following the day this judgment was sentenced to the child support for the principal of the case, and from the day following the day when each principal of the case was delivered with the child support for the principal of the case, until the day before the principal of the case reaches the age of majority.

[Calculation Basis] The age and parenting status of the principal of the case, the age, occupation and income, property and livelihood of the plaintiff and the defendant, the intention of the parties, etc.

D. Interview (ex officio determination)

The Plaintiff, as a non-cushion-child, has the right to interview with the principal of the case, unless it is contrary to the welfare of the principal of the case, and therefore, considering all the circumstances revealed in the change theory of this case, such as the age, status of fostering, and the intention of the parties, the date, method, etc. of visitation right as stated in paragraph (8) of this case

5. Conclusion

Therefore, the defendant's counterclaim divorce claim is accepted for the reasons, and the defendant's counterclaim damages claim is accepted for the reasons within the extent of the above recognition, and the remaining counterclaim damages claim and the plaintiff's principal lawsuit divorce and consolation money claim are dismissed for each reason. It is decided as to division of property, designation of person with parental authority and children, delivery of children, child support, and visitation right as above.

Judges Kim Jong-soo

Judges Cho Jae-sung

Judges Lee Jae-chul