2016Dhap201053 Divorce, etc.

A person shall be appointed.

A person shall be appointed.

1. C

2. D.

April 5, 2018

April 19, 2018

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The plaintiff and the defendant are divorced. The defendant shall designate the plaintiff as the person in parental authority and the guardian of the case.

The principal of this case from the day following the date of delivery of a copy of the complaint with the child support of the principal of this case

By the end of each month, 400,000 won per person per month shall be paid at the end of each month.

1. Facts of recognition;

A. The plaintiff and the defendant, who completed the marriage report on July 2, 2009, had the principal of the case under the chain as a legally married couple.

B. The plaintiff and the defendant met frequently and immediately returned home during the marriage period, and suffered conflict due to the issue that the plaintiff does not receive the defendant's telephone.

C. From March 2016, the Plaintiff was in an internal relationship with Party A, a company’s employee, from around 2016.

On April 19, 2016, the Defendant: (a) asked the Plaintiff’s mother, male son, and following the Plaintiff, the Plaintiff and the Plaintiff appeared to go in Gwangju by doping, and (b) asked the Plaintiff and the Party A to go in the telecom, and committed assault and assault against the Plaintiff and Party A, coming from the telecom.

D. On April 20, 2016, the Plaintiff went to work on the house. On May 13, 2016, the Defendant sought the Plaintiff and A, who had been in the Bluridong-dong Bluridong-gu Busan on May 13, 2016.

E. On May 2016, the Plaintiff and the Plaintiff filed a complaint against the Defendant, her mother, and South dynamics with the Plaintiff around June 2016. On March 24, 2017, both the Defendant and the South dynamics filed a complaint against the Plaintiff and the Plaintiff around June 2016. On March 24, 2017, the Plaintiff and the Plaintiff were sentenced to an insult; the Defendant and South dongs were sentenced to a fine of KRW 500,00 for each offense of insult (joint injury) and offense of insult (the Busan District Court Branch Branch of the Busan District Court) and the said judgment became final and conclusive around that time.

F. The Plaintiff filed the instant lawsuit on May 17, 2016. From June 18, 2016 to June 25, 2016, the Plaintiff and the Plaintiff made a trip abroad.

G. The Defendant, after witnessing the Plaintiff’s external rating around May 2016, purchased precious metals of approximately KRW 10 million with a credit card in the name of the Plaintiff and received cash services.

H. On December 12, 2016, the Defendant filed a lawsuit against Party A claiming consolation money due to an unlawful act with the Busan District Court ( Busan District Court Decision 2016Daso570916), and on June 21, 2017, the Defendant was sentenced to the payment of KRW 10 million to the Defendant and became final and conclusive around that time.

I. The plaintiff and the defendant are currently living separately, and the principal of the case is under custody of the defendant, and the plaintiff has not paid the child support to the defendant.

[Ground of recognition] Gap evidence Nos. 1 through 12 (including the number of branches), Eul evidence Nos. 3 and 11, the fact inquiry to the head of the Busan Immigration Office, the family affairs investigator report, and the purport of the whole pleadings

2. Determination as to the claim for divorce

A. The plaintiff's assertion

The marriage between the plaintiff and the defendant was no longer broken due to the defendant's causes attributable to the defendant, such as the gathering and suspicion of the defendant against the plaintiff, the insult of the plaintiff's economic ability, the denial of marital relationship, the plaintiff's appearance, and violence and intimidation by the defendant, and the use of credit card in the name of the plaintiff. This constitutes grounds for judicial divorce under Article 840 (3) and (6) of the Civil Act.

B. Determination

1) Whether a marriage failure is recognized

In full view of the background, content, degree, and period of separate conflict between the husband and wife revealed in the above facts of recognition, the marriage between the plaintiff and the defendant seems to have been actually broken down. 2) The judgment on the causes attributable to them are determined.

As seen earlier, there was a dispute between the Plaintiff and the Defendant due to frequent drinking, late home problems, and misconduct with the Plaintiff, and during that process, the Defendant assaulted the Plaintiff and used a large amount of credit card in the Plaintiff’s name. However, the circumstance and the evidence presented by the Plaintiff alone are insufficient to recognize that the Defendant had the primary responsibility for the dissolution of marriage as alleged by the Plaintiff, and there is no other evidence to acknowledge otherwise. Rather, the cause of conflict between husband and wife exists, such as having returned home at night and having not been able to recover from the relationship, and even if the act committed with the Plaintiff was discovered, it is determined that the Plaintiff was mainly responsible for the dissolution of marriage, i.e., continuing to engage in an internal relationship with the Defendant and making efforts to recover the relationship.

Therefore, the Plaintiff’s claim for divorce of this case constitutes a divorce claim by the responsible spouse, and thus, cannot be accepted unless there are special circumstances.

3) Exceptional permission of a responsible spouse’s claim for divorce is in conflict with the morality required by the marriage system and to prevent any consequences contrary to the good faith principle. Thus, even in light of the principles of good faith and the pursuit of the marriage system, where the liability of the spouse does not remain to the extent to reject the claim for divorce, a claim for divorce by such spouse is unlikely to be subject to the punishment of marriage and family system and may be allowed as it is against the morality of the society. Therefore, where there is no intention to continue marriage and there is no concern about divorce or divorce at one’s will, as well as where there is protection and consideration for the other spouse and children to the extent to offset the responsibilities of the spouse claiming divorce, the liability of the spouse for divorce has been significant at the time of the dissolution of marriage and the mental suffering of the other spouse’s spouse, and where there is no special circumstance to allow the claim for divorce between the other spouse and the other spouse’s mental distress after the lapse of the three-month period of the three-month period of time.

B) In this case, in light of the above legal principles, the Defendant consistently expressed his intention of opposing the divorce during the instant lawsuit and wanting to recover the marital relationship with the Plaintiff. As such, the Defendant cannot be deemed to have simply refused to accept the Plaintiff’s claim for divorce in a clerical error or retaliation. Moreover, the Defendant’s protection and consideration against the Defendant cannot be deemed to have been given to the extent of offsetting the Plaintiff’s responsibilities. In addition, when compared to the period of marriage of the Plaintiff and the Defendant, the period of separate stay is relatively short, and the period of separate stay alone is relatively short, and the Plaintiff’s responsibilities significant at the time of marriage and the Defendant’s mental suffering is gradually weakened and the degree of both responsibilities is no longer significant.

Therefore, in the case of a marriage between the plaintiff and the defendant, the claim for divorce by the responsible spouse is exceptionally permitted. Therefore, the plaintiff's claim for divorce does not appear to be one mother and is without merit.

3. Determination on the designation of a person with parental authority, a custodian, and a claim for child support

As the plaintiff's claim for divorce is rejected, the designation of a person with parental authority, a person with custody, and a claim for child support, which are premised on divorce, are without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo

Judges Cho Jae-sung

Judges Lee E-young