(영문) 부산가정법원 2014.4.24.선고 2012드합0000 판결

1. According to the principal lawsuit and counterclaim, the plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced.

2. The plaintiff (Counterclaim defendant)'s claim of consolation money and the defendant (Counterclaim plaintiff)'s counterclaim consolation money are dismissed, respectively.

3. Defendant (Counterclaim Plaintiff) pays to Plaintiff (Counterclaim Defendant) 16,00,000 as division of property and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

4. The Plaintiff (Counterclaim Defendant) paid KRW 3,80,000 to the Defendant (Counterclaim Plaintiff) for the past child support of KimCC.

5. The costs of lawsuit shall be borne by each person;

6. Paragraph 4 can be provisionally executed.

Purport of claim

Main Action: Disposition No. 1 and Defendant (hereinafter “Defendant”) are Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

D) 30,000,000 won as consolation money and the service date of a copy of the complaint in this case to the 30,000 won

From the date of this judgment to the date of this judgment, 5% per annum and 20% per annum from the next day to the date of complete payment.

The amount calculated at the rate of division of property, 1,500,000,000 won and the day following the day this judgment becomes final and conclusive.

It shall pay 5% interest per annum from the day of full payment to the day of full payment.

Counterclaim: Paragraph (1) of this Article and Paragraph (1) of this Article and the plaintiff shall be the defendant as consolation money of KRW 100,000,000, and this shall be 2012.

5. From 23. to Pronouncement of this Judgment, 5% per annum and 20% per annum from the next day to the day of full payment.

The amount calculated at each ratio of property division shall be five hundred,00,000,000 won and the date this decision becomes final and conclusive.

The amount of money calculated at the rate of 5% per annum from the date of full payment to the date of full payment shall be the past raising expenses of KimD and KimCC.

20,000,000 each payment shall be made.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Determination as to the claim for divorce and consolation money, respectively, against the principal lawsuit and counterclaim

(a) Facts of recognition;

1) On March 26, 1993, the Plaintiff and the Defendant were legally married couple who reported a marriage on March 26, 1993, and formed a son KimD (O. 0, 1993) and KimCC (O. 0, 1994) (O. 0, 1994) who became an adult majority between them. 2) The Defendant had the head of the house visit the south of the family, and had the head of the house, and had his parents look into money without the Plaintiff and the head of the house, and had the Plaintiff interfered with the Defendant.

3) Around 191, the Defendant: (a) opened a dental school with a loan in 1991; (b) opened a dental school; (c) faced with financial difficulties due to stock investments at the time of the IMF; (d) around 2001, when directors of a hospital and expansion of a hospital into a partnership business in 2003, the financial burden was increased; (c) the Plaintiff did not have to be able to do so; and (d) while managing the hospital’s revenues and expenditures in a mixed manner, the Plaintiff did not face the Plaintiff’s family history, including economic issues. On the other hand, the Plaintiff’s expansion of

Even if considerable profits are raised, the defendant paid the coloring living expenses, and there were complaints against the defendant who did not disclose the financial situation fairly.

4) The Plaintiff is free from the outside and is of a fluent nature. On the other hand, the Defendant, as a family and sincere character, was a fluent and sincere character, was placed in the Plaintiff’s daily life to take exclusive charge of household affairs and rearing at home and to the Defendant’s fluent life, and the Defendant had a lot of complaints against frequent outing by the Plaintiff due to the defect of drinking at the time when she went through a meeting of fluents, etc. from 2004. The Defendant urged the Plaintiff, who was going out of Korea, to return home, to the Plaintiff, and the Defendant was able to have the Plaintiff carry the fluence on the carbook.

5) On October 201, the Defendant received KRW 2,281,33,476, the remainder after deducting taxes from the prize money on October 24, 201, as the result of the winning 1, etc. around 2011, and received KRW 2,281,33,476, which was the remainder (hereinafter “romoto prize”), but rather, paid the Plaintiff a reduction in living expenses (the Defendant asserts that the Plaintiff paid KRW 7 million in total to the Plaintiff for living expenses and paid KRW 5,500,000,000,000,000,000, which was the end of his/her children’s surgery). The Plaintiff rejected the Plaintiff’s request for a delivery of visibility and the Plaintiff invested in the premium insurance, stocks, and deposits, etc., and the Plaintiff is considered to be coloring the Defendant.

6) On May 23, 2012, when his child KimCC was in the third grade of high school, the Plaintiff filed the instant lawsuit against the Defendant seeking a divorce, etc. on July 4, 2012, and the Defendant also filed a counterclaim seeking a divorce, etc. on March 11, 2013.

[Ground of recognition] The items of evidence Nos. 1, 2, and 3-1, 4, 5, and 6 of evidence Nos. 1, 2, and 3-2, investigation report by family affairs investigators, and the purport of the whole pleadings

B. Determination

1) A principal lawsuit and counterclaim divorce claim: A principal lawsuit and counterclaim consolation money claim on the grounds of Article 840 subparagraph 6 of the Civil Act (Article 840 subparagraph 6 of the Civil Act) are without merit.

[Grounds for Determination]

(1) Recognition of marital failure

The above facts of recognition, the plaintiff and the defendant have been living more than two years since May 2012, and they want to divorce between themselves through the main lawsuit and counterclaim in this case, and the plaintiff and the defendant's marital relationship seems to have deteriorated to the extent that they could not continue their marital life.

② The above fact that the failure liability of the plaintiff is equal to both the plaintiff and the defendant. In particular, the defendant did not pay due care to prevent the plaintiff from suffering the plaintiff from being alienated in relation to the plaintiff's main family. In addition, the plaintiff and the defendant did not have any economic problem but independently determine family ties and did not respect the plaintiff as the equal spouse. However, in conflict situations, the plaintiff abused the plaintiff and abused the plaintiff, and the plaintiff did not have any interest in the financial situation of the spouse, and the plaintiff did not have any interest in the spouse, and the defendant did not make a mistake that the defendant took a substantial profit, and even though he did not endeavor to understand each other's position or situation by dialogue or gain, the defendant did not go home immediately after drinking while he did not make efforts to resolve stress. In addition, the plaintiff did not unilaterally perform his duty of cooperation with the plaintiff and the defendant in an important time before the child's face, and therefore, the plaintiff and the defendant did not perform his duty of cooperation with the defendant. Therefore, the plaintiff's and the defendant's act of marriage did not conflict.

Therefore, the plaintiff and the defendant are divorced from the plaintiff according to the principal lawsuit and the counterclaim. Since the marriage of this case is equal to each other's responsibility for causing the failure of the marriage of this case, the plaintiff's claim for consolation money and the defendant's counterclaim consolation money are without merit.

2. Determination on the principal lawsuit and counterclaim for division of property

A. Apportionment of roles in relation to property formation (1)

The defendant operated dental services and paid to the plaintiff the daily average of 40 million to 4.5 million won (the amount equivalent to 5.5 million won per month in pure living costs immediately before the death). The plaintiff was in exclusive charge of household affairs and rearing.

2) On November 2008, the Defendant acquired the Defendant’s revenue-raising money prior to the winning in the Rotototo lottery (hereinafter “O○○ apartment”) under the Defendant’s name around Busan Shipping Daegu 00- O200 apartment O2 (hereinafter “O○○ apartment”). The Plaintiff owned the lease deposit claim of KRW 375 million with respect to the hospital building, the 2003--type car car and the 2009-type car and the national bank deposit in 2009-type car and the 2009-type car and the national bank. In addition, the Plaintiff purchased Purden social life insurance, the Manish life insurance (former New York life insurance), the 350 million won loan and the 50 million won loan with respect to the HaFF and the Hato GG, and the 505 million won loan and the national bank, respectively.

3) Details of the use of an exmotoma prize

On November 1, 2011, the Defendant used the Rototo Roto 1, 201 as indicated in [Attachment 1.3] “Use of the Roto Roto 1.” Of them, the amount equivalent to KRW 2 billion was mixed with net property listed in the Divided Property List, which is held by Won and the Defendant as of the date of the marriage dissolution of this case.

(b) Object and value of division of property;

2. Attached Form 2 as shown in the detailed statement of the property division;

[Ground of recognition] 1, evidence Nos. 7-1, evidence Nos. 1, 2, 4, 5, 7-12, evidence Nos. 13-1, 4, 14, and 15, and the purport of the whole pleadings. The parties’ assertion and judgment as to the property subject to division are as follows:

1) The assertion

The plaintiff alleged that the plaintiff would divide half of the property of both the plaintiff when the plaintiff purchased a moto by using the common property of the couple during the marriage period, and that the plaintiff would divide the above mototo. Therefore, the plaintiff's current property should be divided equally into the property subject to division, while the defendant claimed that the plaintiff should pay the motototo to the defendant as the property subject to division, since the plaintiff is the defendant's unique property, and the plaintiff did not contribute to the formation of the property even before the motototo to the motopoto, and even if the defendant paid the motototo the plaintiff the division of property, the above 50 million won amount to be returned from the above division of property should be deducted from the above division of property, even if the defendant paid the motototo to the plaintiff based on the motototototo, the division of property system provided for in Article 839-2 of the Civil Code only aims to liquidate the real property acquired during the marriage, and therefore, the defendant's 2000 properties should be determined by the court's 208.

Furthermore, as long as the fact that the plaintiff was separated from the defendant when the defendant received the rototoma prize was recognized as above, it cannot be deemed that the plaintiff prevented the reduction of the property or cooperates in the increase of the property that the plaintiff formed based on the rototoma prize or the property formed based on it. Thus, it cannot be deemed that the plaintiff included the rototoma prize or the property formed based on it in the common property of the couple and divide it to the plaintiff. Thus, the above argument by the plaintiff is without merit.

C) However, the Plaintiff currently holds an amount equivalent to 500 million won of pension insurance, which has been subscribed to future set aside, and even if the Plaintiff had the right to seek a return of the said money on the ground of unjust enrichment, etc. against the Defendant, the claim for division of property cannot be deemed to have been specifically granted since the scope and contents of the claim for division of property cannot be determined until specific contents are formed by consultation or a court judgment. The Plaintiff’s claim for division of property pursuant to this judgment cannot offset or deduct the Defendant’s monetary claim from the Plaintiff’s claim for division of property. The Defendant’s monetary dispute with the Plaintiff is resolved by the lawsuit of this case. In order to prevent additional dispute, it is the only method to include and settle the Plaintiff’s pension insurance equivalent to the Plaintiff’s pension insurance in this case’s property. Furthermore, if the Plaintiff recognizes the same as the Plaintiff’s property as the property subject to division, it is not necessary to include the Plaintiff’s pension insurance equivalent to the Plaintiff’s pension insurance in this case’s property subject to division in whole from the present property under the Defendant’s name to include the whole property subject to division.

D. Division ratio of property and method 1): Plaintiff 20%, Defendant 80%

[Based on the judgment] The defendant operated a hospital before the Roto branch, operated a hospital, and earned a considerable income, and the plaintiff reduced the household expenditure by taking full charge of home affairs and rearing. 2.3 billion won among the 2.3 billion won 2.3 billion won which the defendant received by the moto branch, was mixed with the current Won and the defendant's property, and as seen earlier, 2 billion won from the defendant's property should be recognized as the defendant's exclusive property, and as such, 2.0 billion won from the plaintiff's current property should be recognized as the defendant's full-time contribution. Meanwhile, the defendant has a medical specialist's medical qualification, who operates a hospital after the plaintiff's divorce, and is able to obtain high income. On the other hand, the plaintiff did not engage in economic activities during the marriage period close to 20 years, and the plaintiff is able to obtain certain income even in the future, considering the circumstance of acquiring the property division in this case and the circumstances of the plaintiff's property division and its current status of property division after the plaintiff and the defendant's property division.

3) Property division amount to be paid by the Defendant to the Plaintiff: KRW 110 million

[Calculation Form] ① The sum of the Plaintiff’s net property according to the division ratio of property among the Plaintiff’s net property and the Defendant’s net property x KRW 3,177,19,787 x 20% = 635,423,957

② The amount calculated by deducting the Plaintiff’s net property from the money under the above paragraph (1) 35, 423, 957 - KRW 519, 384, 800 = 116,039, 157

② The amount of KRW 116,00,000,000 for a little amount of the money set forth in the above

E. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 10 million won as division of property and damages for delay calculated at the rate of 5% per annum from the day after this judgment becomes final and conclusive to the day after full payment is made.

3. Determination on a claim for expenses incurred in the past of a counterclaim

(a) Claim for past childcare expenses against KimD: No reason exists;

The defendant claimed for the past childcare expenses from May 23, 2012 between the plaintiff's home and May 23, 2012 to the adult. However, since KimD has already reached the majority on May 20, 2012 under the current Civil Act, the defendant's claim for the past childcare expenses against KimD has no reason.

B. Claim for the past child support against KimCC: 3.8 million won, which was the 3.8 million won Plaintiff’s suspension of the payment of the child support to KimCC from May 23, 2012 to December 22, 2013, including the total of KRW 200,000 per month from May 23, 2012 to December 22, 2013, before KimCC became an adult (based on determination), the age and gender of KimCC, the Plaintiff did not engage in economic activities during the marriage period, and the Plaintiff did not have certain income after separation, the economic power of the Plaintiff and the Defendant, the intention of the Plaintiff and the Defendant, and other various circumstances.

4. Conclusion

Therefore, the plaintiff's claim for divorce of the principal lawsuit and the defendant's counterclaim divorce is accepted for each reason, and the plaintiff's claim for consolation money and the defendant's counterclaim consolation money shall be dismissed for each reason, and the claim for division of property of the principal lawsuit and counterclaim and the counterclaim shall be determined as above. It is so decided as per Disposition.