Whether a party’s business obligation constitutes a small property subject to division of property (negative)

The obligation of one party to a business transaction, barring any other circumstance, shall be deemed to have a claim for the amount of goods or sales proceeds equivalent to the debt, barring any other circumstance. Therefore, it is not a debt of the nature that should be deducted from active property subject to division

Article 839-2 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Jeon-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Han-chul et al., Counsel for plaintiff-appellant)

Defendant (Attorney Jeong-chul, Counsel for defendant-appellant)

Principal of the case

1. The plaintiff and the defendant are divorced.

2. The defendant shall pay 30,000,000 won as consolation money to the plaintiff and 42,000,000 won as division of property.

3. The plaintiff shall be designated as the supporter for the principal of the case.

4. The defendant shall pay to the plaintiff the amount equivalent to KRW 200,000 per month from May 13, 1995 to February 22, 2013 as the child support for the principal of the case.

5. The plaintiff's remaining claims are dismissed.

6. Five minutes of the lawsuit are assessed against the plaintiff and the remainder are assessed against the defendant.

7. The above paragraph 2 can be provisionally executed.

The judgment of the court below and the defendant, like the above 1, 300,000 won as consolation money, and 70,000,000 won as division money, respectively, shall be paid to the plaintiff as consolation money, and the defendant shall pay to the plaintiff the amount at the rate of 5,00,000 won per month from the day following the delivery of the copy of the complaint of this case as child support for the principal of this case until the principal of this case reaches adult.

1. Determination on the claim for divorce and consolation money

A. In full view of Gap evidence No. 1, Gap evidence No. 2, Eul evidence No. 3-6, 7, 11, 12, 18 through 24, Eul evidence No. 1, and Eul evidence No. 4 and Eul testimony No. 3 (except for the part which is not trusted after Non-party No. 4's testimony), the plaintiff and the defendant were married under the law after the marriage report was completed on May 7, 1986, and they adopted the principal of this case due to the plaintiff's non-existence of pregnancy. However, the defendant was aware of Non-party No. 1's non-party No. 3's adoption around March 1994, and around March 19, 195, the plaintiff entered into a sex relationship with the above non-party No. 1 in his family with his relative and the non-party No. 4 and the non-party No. 3's testimony, and the plaintiff filed a divorce lawsuit against the non-party No. 1 and the defendant No. 40 on the following day after March 20. 1.

(b) Markets:

According to the above facts, the plaintiff's marital relationship between the plaintiff and the defendant was broken down to the extent that it can not be recovered due to the defendant's above improper act, so the plaintiff's claim for divorce of this case is reasonable. Meanwhile, it is clear in light of the rule of experience that the plaintiff suffered a severe mental suffering due to the plaintiff's above improper act, and therefore, the defendant has a duty to compensate for mental suffering suffered by the plaintiff in money. Thus, considering all the circumstances shown in the argument of this case, such as the plaintiff's and the defendant's age, the degree of property, the period and contents of the marital life, and the circumstance leading to the failure of the marital relation, it is reasonable to determine the amount as KRW 30,00,

2. Determination on the claim for division of property

A. Facts of recognition

The following facts can be acknowledged in full view of the aforementioned evidence and evidence Nos. 4, 3, 4-2, 5-2, 5-2, and 11-2, and the testimony of Non-Party 2 by Non-Party 3.

(1) Before marriage, the Plaintiff was attending the Korea Information Service Company prior to marriage. Even after marriage with the Defendant, the Plaintiff obtained an average of KRW 500,000 per month while working for the said non-party company until his retirement on September 30, 1990, and thereafter was engaged in domestic labor after his retirement. Meanwhile, the Defendant initially obtained a monthly average of KRW 600,000 or KRW 700,000 from the point of the communications equipment shop located in the Cheongcheon-si Complex in the operation of the non-party 2. From around 1988, from the point of marriage, the Plaintiff received a monthly average of KRW 5,740,000,000 from the point of view of operating the telecommunications equipment distribution store in the trade name of Sejong Electronic Co., Ltd., the amount of KRW 3,00,000 per month.

(2) After marriage, the plaintiff she leased and resided in the apartment complex 2 complex owned by the above non-party 3 from the non-party 3, the plaintiff's words, and the plaintiff she was living in the above non-party 3 without compensation. On 1993, the plaintiff she sold the Dobong-dong 30-1, Dobong-gu, Seoul, Dobong-gu, Seoul, under the name of the non-party 4, who is the defendant's punishment, and thereafter, he was living in the above Dobong-dong apartment.

(3) Around the end of 193, the Defendant purchased the passenger car Seoul 4Ma1365,00 in the name of the Plaintiff in gold KRW 13,60,00,000. At present, the Plaintiff is currently using it, and the current market price is KRW 8,00,000.

(4) Meanwhile, in selling the apartment of this case under the name of the above non-party 4, the defendant obtained a loan of KRW 10,000,000 and KRW 20,000 each over two times from the new branch of the National Bank of Korea to the same Dong of the National Bank of Korea on September 4, 1993. The balance of the present loan principal remains approximately KRW 15,00,000,000,000, and around September 23, 1993, the above non-party 3, which was held under a title trust under the name of the defendant around September 23, 1993, was set up with the maximum debt amount of KRW 32,00,000 from the above bank branch to the loan of KRW 28,00,000,000 from the above bank branch, and has not been repaid until now.

(b) Markets:

(1) According to the above facts, each of the above active and passive properties shall be deemed to be a common property created by the plaintiff and the defendant in cooperation after marriage, regardless of the defendant's ability to pay, the use of the property subject to division, and the nature of each of the above properties, and it is not appropriate to divide the above properties into the real property and the pertinent positive and passive property, regardless of the defendant's external appearance, and the plaintiff raised living expenses for four years and five months after the marriage in addition to the defendant's efforts. Since the workplace has been supported by tangible and intangible efforts such as raising children and performing household labor after the marriage, it shall be deemed that the plaintiff and the defendant actually formed cooperation after the marriage. Therefore, it is reasonable to divide the above properties into the real property and the pertinent positive and passive property into the real property and the pertinent obligation under the name of the plaintiff, and the vehicle is finally reverted to the plaintiff, and the amount of the above obligation should be deducted by the defendant's share in cash from the total amount of the above active property to the plaintiff.

Furthermore, considering the scope of this case’s real estate, stitu ground, car, claim for refund of deposit for shop lease, etc., and other various circumstances, including the period during which the Plaintiff and the Defendant continue to marry, the background leading up to divorce, the age and property status of the parties, the degree of cooperation by the Plaintiff on the formation of the property during marriage, and the amount of money equal to 143,470,000 won, which is the aggregate market price as of the date of closing argument of active property, including the real estate, stitu ground, car, and the claim for refund of deposit for store lease, etc., the Defendant shall vest the Plaintiff with the amount equal to 43,000,000 won (15,000,0000 + 5,470,0000 won + 5,000,0000 won) deducted from the aggregate amount of the above debt to the Plaintiff as of the date of closing argument, and thus, shall vest the Plaintiff’s amount equivalent to 10,4000,0000 won.

(2) The defendant has a debt of KRW 25,00,00 against the non-party 2, who is his/her selling form, and borrowed KRW 49,330,00 in total at the discount of the bill and check issued by his/her customer from the non-party 4, who is his/her selling form of the bill and check, but thereafter, he/she bears a debt of KRW 49,30,000 against the above non-party 4 when the above bill and check are defaulted, and each of the above obligations must be deducted when determining the above divided property.

Therefore, according to the above evidence, the defendant's assertion on the debt against the above non-party 2 is difficult to find that the above non-party 2 suffered business debt amounting to approximately KRW 15,00,000 due to credit transactions with the above non-party 2, a type of company operated the above non-party 4 in operating the above non-party 4, and the above non-party 2 changed the name of the lessor to the non-party 2's name. However, barring any other circumstance, the above non-party 4's assertion that the above non-party 4's financial debt amount was transferred to the non-party 2, but it is hard to find that the above non-party 4's financial debt amount was due to the above non-party 4's financial debt amount to be deducted from the above non-party 4's active asset subject to division, and the defendant's assertion that the above non-party 4's above non-party 4's testimony and the above non-party 4's appraisal of the above non-party 50's money amount.

3. Judgment on the disposition of fostering

Considering the above various circumstances, such as the circumstance of the marriage dissolution of the plaintiff and the defendant, the living attitude of the plaintiff and the defendant, the age of the principal of the case, and the degree of patriotism for the principal of the case, it is reasonable to have the plaintiff who currently raises the principal of the case, rather than the defendant, continuously rear the principal of the case until his adult age and welfare. Thus, the plaintiff is designated as the fostering person of the principal of the case. Meanwhile, the defendant is obligated to pay part of the child support to the plaintiff who is designated as the rearing person of the principal of the case as his father. Furthermore, considering all circumstances revealed in the arguments, such as health class, the age of the plaintiff and the defendant of the case, the principal of the case, the property status of the original and the defendant, and academic background, the defendant is obligated to pay the amount at the rate of 20 won every month from May 13, 1995 to February 22, 2013, which is the day following the delivery day of the copy of the complaint of this case as requested by the plaintiff.

4. Conclusion

Therefore, the plaintiff and the defendant are divorced, and the defendant are obligated to pay 30,000,000 won as consolation money to the plaintiff as division of property, and 42,000,000 won as division of property. Since the above provision is reasonable with respect to the designation of a custodian and the claim for child support to the principal of this case, each of the claims of this case is accepted within the scope of the above recognition, and it is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-young (Presiding Justice)