2011Ro208 Divorce and Condolence Money

Plaintiff (son)

Law Firm Yong-Nam et al., Counsel for defendant-appellant

Attorney Kim Young-young

1. Husband.

2. A mother;

ASEAN

Jeonju District Court Decision 2010Ra967 decided February 23, 2011

July 12, 2011

September 6, 2011

1. Of the judgment of the court of first instance, the part against the plaintiff, which is the money ordered to be paid under the following among the part claiming divorce and the part claiming consolation money against the defendant husband, shall be revoked

2. The plaintiff and the defendant husband are divorced.

3. The Defendant husband shall pay the Plaintiff consolation money at KRW 3,00,000, and 5% per annum from October 15, 201 to September 6, 201, and 20% per annum from the next day to the day of full payment.

4. The plaintiff's remaining appeals against the defendant's husband and the defendant's mother's appeal against all are dismissed.

5. The plaintiff shall be designated as a person with parental authority and a custodian of the principal of the case.

6. The defendant husband pays to the plaintiff the child support of the principal of the case at the end of each month the amount of KRW 150,000 per month from September 6, 201 to September 201,x x x x x x. x. x. x. x. x. x, to the end of each month.

7. Of the total litigation costs, 25% of the part arising between the Plaintiff and the Defendant’s husband shall be borne by the Plaintiff, the remainder shall be borne by the husband, and the part arising between the Plaintiff and the Defendant’s mother shall be borne by the Plaintiff.

8. Paragraph 3 can be provisionally executed.

The judgment of the first instance court is revoked. The defendants and paragraphs (2) and (5) of this Article shall pay to each plaintiff 30,000,000 won with 20% interest per annum from the day following the day when the complaint of this case was served on the defendants to the day of complete payment. The defendant husband shall pay to the plaintiff the amount of 50,000 won per annum from the day following the day when the principal of this case was served on the defendant's husband with the child support of the principal of this case to November 26, 2026.

1. Determination on divorce and claim of consolation money

A. Facts of recognition

1) The Plaintiff of the nationality of XX and the Defendant husband of the Republic of Korea are legally married couples who completed the marriage report on x, x, x and her husband, the Defendant mother is the mother of the Defendant husband (parent), and the Plaintiff and the Defendant husband had the principal of the case as their children.

2) After having graduated from an elementary school due to a mental disorder from the time when the Defendant husband became disabled, the Defendant husband had lived mainly with the Defendant’s mother and other family members without any special occupation. The Defendant husband was unable to lead a normal social life due to his failure to meet the level of 7 to 8 years of age in daily skills.

3) On July 2004, the Plaintiff introduced the Defendant’s husband through A, who is a migrant woman with the same nationality, and around July 2004, the Defendants and the Defendant’s husband’s husband’s three villages were visited to the country in XX for the Plaintiff to grow up with the Plaintiff. At that time, the Defendant’s mother merely informed the Plaintiff of the fact that the Defendant’s husband was a visual disability, and did not specifically mention the above mental disorder.

4) On July 2004, the Defendant husband returned to Korea, after the visit, returned to Korea. On July 2004, Xx, the Defendant husband left Korea again to XX country for the marriage awareness, and around August x, 2004, left Korea first after taking the marriage ceremony in the Plaintiff and the Philippines, and returned to Korea first. On December x, 2004, the Plaintiff entered Korea on December x, x, and the Defendant husband began the mixed life of the Plaintiff and the Defendant husband. At that time, the time is shorter than the time when the Plaintiff got with the Defendant husband, and was unable to recognize that there was a mental disorder with the Defendant husband, and that there was a mental disorder with the Defendant husband.

5 ) 원고는 피고 남편과의 혼인생활을 시작한 이래 줄곧 피고 시모 등 시댁식구들 과 함께 생활하면서 집안일 이외에도 시댁식구들이 시장에서 XX 등을 만들어 파는 일 을 도왔는데 , 이에 반하여 피고 남편은 평소 아무런 일도 하지 않았고 , 주로 초등학교 1 , 2학년 아이들과 어울려 놀면서 혼자서 중얼거리거나 이유 없이 웃는 등의 이상행동 을 보이곤 하였다 .

6) In addition, the Defendant husband sought sexual intercourse with the Plaintiff on the grounds that the Plaintiff’s refusal of sexual intercourse is difficult, such as demanding a frequent sexual relationship, and causing the Plaintiff to brutate or sleep, etc., and talking about the sexual relationship with the Plaintiff without any distance from the Plaintiff’s parents.

7) Accordingly, the Plaintiff became aware of the next mental disorder of the Defendant husband, and was admitted to the Plaintiff on July 2009, on the ground that the husband was born with severe mental stress due to the husband’s symptoms of mental disorder, and the husband was forced to go to the instant principal on July x., 2009, and the Plaintiff was sexually forced to go to Paris, and the Plaintiff was sexually b. x. the instant principal in the same month x. x. the instant principal in the instant case and requested to help the YWCA.

19) After August 1, 2009, the Plaintiff voluntarily returned home on August x, 2009, but she was living together with the principal of the case after licking, and has been living separately with the Defendant’s husband until now.

10) Meanwhile, the symptoms of the defendant's husband's mental disorder do not have any special support during the marriage life, and is not receiving treatment for the mental disorder during the month.

【Non-contentious facts of Gap’s 1-1, 2-3, Gap’s 6-9, Gap’s 10-1 through 4, Gap’s testimony and video, Gap’s testimony and witness of the first instance court, the defendant’s husband’s testimony of the first instance court, the whole purport of the pleadings

B. Determination on the claim for divorce

According to the above facts of recognition, the plaintiff as to abnormal behavior caused by a mental disorder of the defendant husband.

From the time when the plaintiff and the defendant's husband's marital life were no longer able to recover. The reason why the failure was caused by the failure was caused by the marriage of the plaintiff and the defendant's husband, and the defendant's husband's mental disorder was concealed, thereby making the plaintiff lose reliance on the above defendant by marriage with her husband's mental disorder, thereby making the plaintiff lose reliance on the above defendant, and as a normal couple within the marriage period, it was impossible to live as a normal couple within the marriage period.

In addition, the plaintiff's claim for divorce of this case on the ground that it constitutes a cause for judicial divorce under Article 840 subparagraph 6 of the Civil Code. Thus, the plaintiff's claim for divorce of this case on this ground is well-grounded (if the couple has a duty to live together, provide support and cooperate with each other, and the married life is to make best efforts to maintain the marital life by understanding, protecting each other through patriotism, faith, and human life, but the married couple is married without notifying the other spouse of the fact that one has an incurable mental disorder before the marriage, and the other spouse suffers from constant mental and physical suffering, and such suffering may not be forced to make a unilateral sacrifice to the other spouse without referring to his duty to care between the other spouse until it is known at any time and after the marriage. Thus, it is concluded that the plaintiff's mental disorder continues to vary for a certain period after the marriage of the defendant's husband.

C. Determination on the claim of consolation money

1) Determination as to the claim against the Defendant husband

As above, the plaintiff's marital life caused the failure of the defendant's husband due to the failure of the defendant's husband's responsibility, and the plaintiff's husband has suffered considerable mental pain in light of the empirical rule, so the defendant's husband has a duty to go against this money. Thus, considering the plaintiff's remaining convenience age, occupation, property status, marital life process, marriage continuance period, circumstance of the failure, and all other circumstances shown in this case's argument, the amount of consolation money shall be determined at KRW 3,00,000.

Therefore, the Defendant husband is obligated to pay to the Plaintiff damages for delay at the rate of 5% per annum as stipulated by the Civil Act, which is the day following the delivery date of a copy of the complaint of this case sought by the Plaintiff, from October 15, 201 to September 6, 201, which is the day of the judgment of this case, and 20% per annum as stipulated by the Special Cases Concerning the Promotion of Legal Proceedings, etc., from the next day to the day of full payment.

2) Determination as to the claim against the defendant mother

The plaintiff asserts that the defendant mother provided the cause of the marriage of this case by treating the plaintiff as old and female workers, forcing the plaintiff to work in an unreasonable manner, etc., and treating the plaintiff, and treating the plaintiff by assaulting and assaulting the plaintiff, but the statement or image of the evidence No. 3-1, No. 2, No. 5, No. 6-1, No. 2, No. 4, No. 14, and No. 7, and No. 9 are sufficient to acknowledge the plaintiff's above assertion. Since there is no other evidence to acknowledge it, the plaintiff's above assertion against the defendant mother is not accepted.

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

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

Considering the circumstances indicated in the instant case, such as the process of married life of the original and the defendant, the reason why the failure was caused, the age and intent of the principal of the instant case, the degree of formation of a settlement relationship with the principal of the instant case, and the social and economic capacity of the parties, it is reasonable to designate the Plaintiff as the person with parental authority and the custodian of the instant principal for the growth and welfare of the principal of the instant case.

(b) Child support;

As long as the plaintiff is designated as a person with parental authority and a guardian of the principal of this case, the defendant husband is obligated to share the child support of the principal of this case as the child of the principal of this case. When comprehensively considering all the circumstances revealed in this case, such as the age and parenting of the principal of this case, the situation of the plaintiff and the defendant's economic power, the defendant is the first day before the principal of this case reaches the majority from September 6, 201, which is the date the judgment of this case was rendered to the principal of this case.

20x.x.x.x.x.x.x. each month until the end of each month, it is reasonable to pay 150,000 won on the last day of each month.

Therefore, the plaintiff's claim for divorce against the defendant husband and the claim for consolation money within the above recognition scope shall be accepted respectively, and the remaining claim for consolation money against the defendant husband against the defendant husband and the claim for consolation money against the defendant mother shall be dismissed without merit, and the above claim for consolation money against the defendant mother shall be determined as above. The judgment of the court of first instance shall be reversed and it is so decided as per Disposition because the judgment of the court of first instance is just with some different conclusions.

Judges Kim Jong-hwan

Judges Yoon Dok-gi

Judges Kim Jong-young