2018Da243089 Requests for the transfer of ownership, etc.

Plaintiff

Defendant

Attorney Choi Man-hwan et al., Counsel for the defendant-appellant

Seoul High Court Decision 2017Na2042690 Decided May 18, 2018

June 24, 2021

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Progress of the instant lawsuit and related litigation

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. On August 24, 2004, the Plaintiff brought a lawsuit against the Defendant claiming divorce, division of property, etc. under the Seoul Family Court Decision 2013Dhap11690 on December 27, 2013 against the Defendant.

B. On May 28, 2014, the Defendant filed a counterclaim against the Plaintiff to claim a divorce, division of property, etc. under the same court 2014Dhap3276 (hereinafter collectively referred to as “litigation, etc.”) (in total of the principal lawsuit and the counterclaims, “litigation, etc.”).

C. As a claim for division of property in litigation, including divorce, the Plaintiff agreed to distribute the rental income accrued after March 2010 to the Plaintiff and the Defendant 20% of the rental income generated from each of the commercial buildings listed in the separate sheet as stated in the lower judgment (hereinafter “each of the commercial buildings of this case”) with the Defendant. As such, the Plaintiff asserted that the Defendant is obligated to pay the Plaintiff the unpaid rental income KRW 224 million.

D. In addition, on December 15, 2014, the Plaintiff filed a separate lawsuit against the Defendant, including divorce, seeking reimbursement of KRW 22,400,000,000, based on the aforementioned agreement on the distribution of rental profit as agreed upon with the Seoul Central District Court.

E. On September 23, 2015, the first instance court rendered a judgment that accepted a part of the principal lawsuit and counterclaim, such as a divorce claim and a claim for division of property between the Plaintiff and the Defendant, and concluded that there is no evidence to support the Plaintiff’s claim for the above agreement on distribution of rental profit, and thus, did not include the portion in the property subject to division.

F. The Defendant filed an appeal against the part other than the part on divorce and the claim of consolation money among the judgment of the first instance, including divorce, and the Plaintiff filed an incidental appeal. The Plaintiff filed an appeal against divorce, etc.

The appellate court (Seoul High Court 2015Reu2027, 2015Reu2034 (Counterclaim) rendered a judgment that changed the part of the first instance judgment on May 31, 2016, and the appellate court did not accept the Plaintiff’s claim for the agreement on the distribution of rental income. Accordingly, the appellate court’s judgment became final and conclusive as it is (hereinafter referred to as “final and conclusive judgment, such as divorce”).

G. On October 20, 2016, after the final and conclusive judgment on divorce, the Plaintiff filed an application for modification of the purport of the instant claim and the cause of the instant claim. With respect to the agreement on the distribution of rent profit of each of the instant commercial buildings, the Plaintiff, as in the written form, had an agreement to distribute the leased profit of the instant commercial buildings to Plaintiff 80%, Defendant 20%, and Defendant 2/3, and Defendant 1/3, as in the case of divorce, etc., and the agreement to distribute the leased profit of the instant commercial buildings to Defendant 2/3, and Defendant 1/3.

2. The judgment of the court below

For the following reasons, the lower court rejected the claim on the following grounds: (a) the part seeking payment in relation to the agreement on the distribution of rent profits on each of the instant commercial buildings, which is the same as a claim dismissed in the final and conclusive judgment, such as divorce, and thus, did not accept

A. The Plaintiff’s assertion in a lawsuit, such as divorce, is seeking monetary payment on the ground of the agreement on the distribution of rent profits between the Plaintiff and the Defendant. Therefore, even if the Plaintiff included the amount in the claim for division of property, it is difficult to maintain a difference from the general civil claim

B. The Plaintiff’s assertion seeking payment of KRW 224 million on the ground that the Plaintiff agreed to distribute the lease proceeds of each of the instant commercial buildings to Plaintiff 80% and Defendant 20% is the same as the Plaintiff asserted in the lawsuit, including divorce.

C. Although the judgment of the first instance court does not accept the Plaintiff’s assertion on distribution of rent profits, such as divorce, it is difficult to find a difference between dismissing a civil claim based on the agreement and dismissing a part of the Plaintiff’s claim for division of property.

D. The Plaintiff’s assertion that KRW 224 million should be returned, separate from division of property or unjust enrichment, while filing an incidental appeal against the judgment of the first instance court of a lawsuit, such as divorce, is explicitly asserting that the return of unjust enrichment by general civil petitioner should be returned to the Plaintiff.

E. We dismiss the Plaintiff’s claim that the final and conclusive judgment, such as divorce, did not accept the Plaintiff’s claim for distribution of rental profit, as to the explicit assertion of return of unjust enrichment by general civil petitioners.

3. Judgment of the Supreme Court

A. Where a marriage is terminated due to divorce, etc., one of the parties may file a claim for division of property against the other party. When an agreement on division of property is not reached or cannot be reached, the Family Court shall, upon the party’s request, determine the amount and method of division in consideration of the amount of property achieved through mutual cooperation and other circumstances (Article 839-2(2) of the Civil Act). The Family Litigation Act provides for a family litigation case and a family non-litigation case under the exclusive jurisdiction of the family court. The disposition on division of property pursuant to Article 839-2(2) of the Civil Act is classified as a category E non-litigation case (Article 2(1)2(b) of the Family Litigation Act, and Category E family non-litigation case is subject to the jurisdiction of the family court in the place where the other party’s ordinary re-printed is located (Article 46 of the Family Litigation Act). Meanwhile, where multiple family litigation cases, or the grounds for a claim for a family non-litigation case and a claim for one claim are based on the same factual basis or under the premise of propriety of one claim, the case can be brought in several cases (14).

The main purpose of the property division system is to liquidate and distribute property jointly formed by the couple during marriage in cases of divorce, etc. (see, e.g., Supreme Court en banc Decision 2010Meu4071, Jun. 20, 2013; 2010Meu4088, Jun. 20, 2013). However, in cases of property division following divorce, property division may be divided by including the nature as benefits to compensate for mental damage (deficial material) in addition to the liquidation elements of property formed during marriage and the support elements after divorce (see, e.g., Supreme Court Decision 2005Da73105, Jun. 29, 2006).

Division of property may be conducted by various means, such as in-kind division, monetary payment, and auction division. If a property partitioned is the financial property possessed in cash or deposit account, it is inevitable to divide the property by payment of money. However, a claim for division of property can only be made when an agreement is not reached or it is impossible to reach an agreement between the parties. As such, it is distinguishable from a civil claim seeking performance of an agreement on division of property already made. In a case involving a claim for division of property, whether a claim is the claimant for division of property or whether a separate civil petitioner is the claimant for division of property shall be determined by comprehensively taking into account the cause of the claim in the relevant case, the purport of the claim, the judgment of the court

B. According to the reasoning of the lower judgment and the record, the following facts and circumstances are revealed.

1) The Plaintiff asserted that the Defendant is obligated to pay the unpaid rental proceeds to the Plaintiff based on the agreement on the distribution of rental proceeds for each of the instant commercial buildings in a lawsuit, including divorce, but the purport of claiming the payment of money as division of property is clearly stated in the purport of the claim.

2) During the first instance trial, the Plaintiff filed the instant lawsuit, including seeking payment of the unpaid rental income amounting to KRW 224 million, based on the agreement on the distribution of rental profit as to the same content against the Defendant, including divorce.

3) From the first instance court on August 6, 2015, the Plaintiff submitted an application for modification of the purport of, and the cause of, the claim, such as divorce. The Plaintiff asserted the division ratio and amount of property, including other property subject to division, while maintaining the claim of the agreement on the distribution of rental profit.

4) In determining the claim for division of property, the first instance court rejected the Plaintiff’s claim for distribution of rental profit on each of the instant commercial buildings, but stated in the “Unauthorized Statement of Property,” which is not included in the property and value subject to division.

5) The Plaintiff appealed against the judgment of the court of first instance, including divorce, and filed an incidental appeal against the part on the claim for division of property at the court of first instance, but did not change the cause of the claim at the court of first instance. The Plaintiff cited the Supreme Court Decision 202S36 Decided August 28, 2002, stating that “The Defendant shall return KRW 224 million to the Plaintiff, separate from the division of property according to the agreement on the division of property according to the agreement on the division of property in accordance with the division of property pursuant to the agreement on the division of property in each of the instant case.” However, one of the husband’s unique property may be divided in cases where it is deemed that the other party actively cooperates in the maintenance of the unique property and actively prevented the reduction thereof or has cooperated in the proliferation thereof.”

6) On March 21, 2016, the Plaintiff submitted a preparatory document on March 21, 2016 in a lawsuit, including divorce, and asserted to the effect that “the Defendant should return rent of KRW 224 million equivalent to the Plaintiff’s share (80%) to the Plaintiff separately from the instant division of property.” However, the Plaintiff expressed in the same document that the Defendant would file a lawsuit seeking a separate claim for return of unjust enrichment if the Defendant did not make a voluntary payment to the Plaintiff.

7) The circumstances that the appellate court of a lawsuit, such as divorce, sought an explanation of the Plaintiff’s assertion in the litigation procedure are not verified. The final and conclusive judgment of a lawsuit, such as divorce, rejected the Plaintiff’s assertion as to the Plaintiff’s claim amounting to KRW 22,400,000,00 according to the agreement on the distribution of rent-making profits pertaining to each of the instant commercial buildings. However, the circumstance alleged by the Plaintiff is merely stated that the Plaintiff’s claim is considered as division of

8) After the final and conclusive judgment of a lawsuit, including divorce, the Plaintiff added a preliminary assertion seeking the payment of unpaid rent on the premise that the distribution ratio of rent profit on each of the instant commercial buildings was Plaintiff 2/3 and Defendant 1/3.

C. Examining the above facts and circumstances in light of the legal principles as seen earlier, while claiming a division of property in a lawsuit such as divorce, the Plaintiff asserted that the cause of the claim included the rental profit distribution agreement with respect to each of the instant commercial buildings, and the court can only find that the aforementioned claim was judged in the part concerning the property and value subject to division, and it cannot be deemed that the Plaintiff filed a joint claim for return of unjust enrichment, separate from the above claim for division of property, or that the court dismissed the Plaintiff’s claim as civil claim. Therefore, res judicata effect of a final and conclusive judgment such as divorce cannot be deemed to affect the civil

D. Nevertheless, the lower court, on the premise that the Plaintiff’s claim regarding the rental profit distribution agreement on each of the instant commercial buildings was determined as a civil claim in the final and conclusive judgment, such as divorce, on the premise that res judicata effect of the final and conclusive judgment, such as divorce, extends to the instant case, and did not accept the Plaintiff’s claim regarding the Plaintiff’s lease profit distribution agreement on each of the instant commercial buildings. In so determining, the lower court erred by misapprehending the legal doctrine on the property division claim, the quasi-joint claim, and the res judicata effect

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Noh Tae-tae

Justices Lee Ki-taik

Justices Park Jung-hwa

Justices Kim Jong-soo