The nature of a property division agreement on the premise of a divorce between husband and wife during the marriage, and whether the agreement on property division takes effect even in cases where a marital relationship exists or a judicial divorce takes place (negative)

The consultation on division of property refers to a consultation between the parties who already completed a divorce as to the division of property, which has been achieved through the cooperation of both parties during marriage, or between the parties who have not yet been divorced, and in the case of consultation on the division of property on the premise of the agreement to divorce at the future, barring any special circumstance, it shall be deemed that conditional declaration of intention is made on the condition that the divorce shall be made by agreement between the parties in the future, unless there are special circumstances. Thus, if the agreement takes effect only in the case where a divorce is made after the agreement between the parties after the agreement, and if the agreement remains in a marital relationship without divorce for any reason, or a judicial divorce (including a divorce by reconciliation or mediation) is made by the action on the claim for divorce by one party, the agreement shall not take effect due to the non-performance of the terms and conditions of divorce.

Articles 105, 147, and 839-2 of the Civil Act

Supreme Court Decision 99Da33458 delivered on October 24, 2000 (Gong2000Ha, 2383), Supreme Court Decision 2000Da58804 Delivered on May 8, 2001 (Gong2001Ha, 13444)

[Judgment of the court below]

Defendant (Attorney Kim Sung-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na128 delivered on February 13, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 through 3

Examining the evidence admitted by the court below in light of the records, the court below acknowledged facts as stated in its judgment, and held that the division agreement between the plaintiff and the defendant on February 2, 1998 was legally revoked due to declaration of intention by coercion, and barring any special circumstance, the defendant is obligated to cancel the registration of transfer of ownership in the name of the defendant for the real estate of this case made by the division agreement on February 2, 1998, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to selective or conjunctive claims due to violation of the rules of evidence, as alleged in the

According to the records, the plaintiff asserted that the agreement on the division of property on February 2, 1998 was forged in the complaint of this case, or that it was null and void by a declaration of invalid intent made under the custody of the mental patient with a mental illness, and did not assert the revocation of the declaration of intent made by coercion. Thus, it is erroneous for the court below to have judged that the agreement on the division of property on February 2, 1998 was lawfully revoked by the service of the complaint of this case. However, it is obvious that the plaintiff filed a claim for revocation by the declaration of intent made by duress in the preparatory document on June 26, 200, and that the above preparatory document was delivered to the defendant. Therefore, the court below's error is not affected by the conclusion of the judgment. All of the grounds of appeal on this part cannot be accepted.

2. As to the fourth ground for appeal

According to the reasoning of the judgment below, even if the agreement on the division of property was revoked on February 2, 1998 on the ground that it was caused by duress, the plaintiff and the defendant reached a property division agreement on May 21, 1997, and thus the registration of the transfer of ownership in the name of the defendant on the real estate in this case is valid as a registration consistent with the substantive relationship. The plaintiff and the defendant agreed on May 21, 1997 to divorce, and "the plaintiff's property division, duty of support, etc." are ordered to the defendant, and the defendant again pays to the plaintiff a sum of KRW 50 million and KRW 10 million within one month, and the defendant paid a sum of KRW 20 million to the defendant, which is 9,000,000,000 and KRW 100,000,000,000 to the defendant, and the purport of the above agreement is not to transfer the property, regardless of whether the agreement was married, but to have been formed as a joint divorce agreement with the plaintiff 97.

However, the above judgment of the court below is not acceptable.

The consultation on division of property refers to a consultation between the parties who already completed a divorce or between the parties who have not yet been divorced on the division of property, which has been achieved through the cooperation of both parties during the marriage, and in the case of consultation on the division of property on the premise that the parties who have not yet divorced on the basis of the agreement to divorce at the future, barring any special circumstance, it shall be deemed that conditional declaration of intention is made on the condition that the divorce shall be achieved by agreement between the parties in the future, unless there is a special circumstance. Thus, in the case where a divorce is made after the consultation between the parties after the consultation, it shall take effect only in the case where a divorce is made under agreement between the parties, and where a marital relationship remains without a divorce for any reason, or a judicial divorce (including a divorce by reconciliation or mediation; hereinafter the same shall apply) is made by the action on the claim for divorce, the consultation shall be deemed not to take effect by the non-performance of the conditions (see, e.g., Supreme Court Decisions 95Da23156, Oct. 12, 1995>

According to the records, the plaintiff is highly vulnerable to a family life, such as raising doubt about the male relations of the defendant, and dispute frequently with the defendant. From March 1997, there were many cases where the plaintiff sknife and threatened with death of the defendant, or threatening to do so. From May 21, 1997, since the plaintiff and the defendant were in the state of being unable to lead normal marital life, "the plaintiff related to division of property, support duty, etc." was agreed on May 21, 1997, and "the plaintiff was hospitalized with the defendant," and the defendant was hospitalized with 50 million won and 10 million won within 1 year, and the plaintiff was hospitalized with 90 million won and 10 million won within 1 year, and the plaintiff was diagnosed with the defendant's mental hospital's mental disorder's mental disorder's mental disorder's mental disorder's mental disorder after consultation with the plaintiff and the defendant's mental disorder's mental disorder's mental disorder's diagnosis and treatment.

In light of the overall contents of the agreement on the division of property as of May 21, 1997, the above agreement on the division of property as of May 21, 1997 means that the Plaintiff transferred the ownership of the real estate of this case to the Defendant, and the Defendant pays 100 million won to the Plaintiff. As such, the agreement on the division of property as of February 2, 1998 is concluded after the agreement on the division of property was reached, and barring any special circumstance, it is highly probable that the registration on the transfer of ownership in the name of the Defendant on the real estate of this case is valid as a registration consistent with the substantive legal relations. Since the agreement on the division of property as of May 21, 1997 between the Plaintiff and the Defendant on the division of property as of May 21, 1997, and thus the agreement on the division of property was normally recovered, and it is reasonable to view that the Plaintiff’s assertion and proof should be made.

Nevertheless, the court below's rejection of the defendant's defense on May 21, 1997, based on the following without further deliberation as to the circumstances of the division of property agreement as of May 21, 1997, the actual state of marriage between the plaintiff and the defendant after the above agreement, the circumstances of the marital relationship between the plaintiff and the defendant, the circumstances of the divorce between the plaintiff and the defendant, etc., was not considered, and the validity of the division of property agreement as of May 21, 1997 became final and conclusive, is not sufficient to conduct a trial, or it is erroneous in the misapprehension of legal principles as to

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court 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 Park Jae-sik (Presiding Justice)