2016ddys 15880 (Divorce, etc.) Divorce, etc.

2017dden204175 (Counterclaims) Divorce, etc.

A person shall be appointed.

A person shall be appointed.

June 19, 2018

August 14, 2018

1. According to the principal lawsuit and counterclaim, the plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced.

2. The plaintiff (Counterclaim defendant)'s claim for consolation money against the defendant (Counterclaim plaintiff) is all dismissed.

3. The plaintiff (Counterclaim defendant)'s claim for division of property is dismissed.

4. The costs of lawsuit shall be borne by each person.

The principal lawsuit: In accordance with the principal lawsuit, the plaintiff (Counterclaim defendant; hereinafter the plaintiff; hereinafter the plaintiff) and the defendant (Counterclaim plaintiff; hereinafter the defendant) are divorced. The defendant shall pay to the plaintiff 30 million won consolation money and 15% interest per annum per annum from the day following the day of service of a copy of the application to amend the claim of this case and to the day of delivery of a copy of the application to supplement the claim of this case. The defendant shall pay to the plaintiff 30 million won as division of property and 1820,000 won per annum from the following day to the day of full payment. The defendant shall pay to the plaintiff 5% interest per annum from the day after this judgment becomes final to the day of full payment.

Counterclaim: The plaintiff shall be divorced by counterclaim from the defendant. The plaintiff shall pay consolation money of KRW 20 million to the defendant.

1. Facts of recognition;

A. The Plaintiff of the People’s Republic of China’s nationality and the Defendant of the Republic of Korea’s nationality have first filed a marriage report through an international marriage brokerage company on November 18, 2014, and have no child among them.

B. On July 15, 2015, the Plaintiff entered the Republic of Korea on the ground of the Korean language test, etc., and the Plaintiff sent the same at the apartment located in Busan-dong, Busan-dong, Busan-dong.

C. On September 2015, the Plaintiff was working in a restaurant near the residence and served from 00 to 23:30, while the Plaintiff was working in a restaurant near the residence. The income therefrom was managed by the Plaintiff.

D. On March 19, 2016, the Defendant invited the Plaintiff’s children to Korea at the Plaintiff’s request on or around March 19, 2016. However, it is difficult for the Plaintiff and the Plaintiff, who entered the Republic of Korea for tourism, to seek work, were employed in a farm located in Gangseo-gu Busan, Busan, on April 2016, and went away from around 5:20 to 21:40.

E. The Defendant, who is not a worker, was dissatisfied with the Plaintiff, who was negligent in domestic affairs, was dissatisfied with the Plaintiff’s complaint at the time of divorce, and went back to China. The Plaintiff was sent to her house and farm.

F. Meanwhile, on May 2016, the Defendant: (a) was diagnosed by brain fluencing at the Busan Madon Hospital of Madon University; (b) was hospitalized; and (c) instead of the Plaintiff, the Defendant her children and the Defendant her children living in son and provided sick care.

G. On July 13, 2016, the Plaintiff returned to the office of the Defendant of this multi-user, who was due ( July 15, 2016). Around July 13, 2016, the Defendant received the Plaintiff as well as the Plaintiff’s female couple, who was living in Sungnam with the Plaintiff and the Plaintiff’s female couple, “I would return to the Defendant well-being,” and agreed to extend the Plaintiff’s foreigner registration certificate.

H. Nevertheless, on September 15, 2016, the Defendant did not want to have the marriage between the Plaintiff and the Defendant, including that the Plaintiff was not considered as a whole denial of the Defendant’s entire denial, and that the Plaintiff was only in room.

I. The Plaintiff was dissatisfied with the following: (a) the Plaintiff was faced with the Defendant’s minor problem; (b) the Plaintiff’s retirement pay and living expenses; (c) the Plaintiff was required to pay the Plaintiff’s retirement allowances; or (d) the Plaintiff’s password was changed by returning to China without any justifiable reason; and (c) the Defendant was unable to pay money due to the Plaintiff’s repeated demand, such as the Plaintiff’s invitation, employment, and congratulatory investigation expenses; and (d) there were many complaints against the Plaintiff neglected to pay money to the Plaintiff.

(j) On November 13, 2016, the Plaintiff and the Defendant re-convened with the aforementioned complaints, etc., and the Plaintiff later was living together until now.

(k) Meanwhile, during the dispute over the above paragraph (j) above, the plaintiff filed a complaint against the defendant on the crime of injury by 'the defendant's face at hand with the floor and door of the plaintiff's face, 'the plaintiff's left loss due to a walling, etc., causing damage to the character of the hand that requires treatment for about one week.' The defendant filed a false complaint against the plaintiff, and filed a request for formal trial against the summary order (the fine of KRW 3 million). However, when the court of first instance sentenced a fine of KRW 2 million, the defendant appealed and is still pending in the appellate court.

[Ground of recognition] Gap 1 to 12, Eul 14, Eul 1 to 4 (including numbered numbers), family fact-finding report by family fact-finding officers, the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money against each principal lawsuit and counterclaim

A. Claim for principal lawsuit and counterclaim divorce: All of the grounds under Article 840 subparagraph 6 of the Civil Act are reasonable.

(b) Claim of consolation money and counterclaim: None of any ground;

C. Grounds for determination

1) In full view of the facts acknowledged earlier and the fact that the Plaintiff and the Defendant claims a divorce as a counterclaim with the principal claim, the marriage between the Plaintiff and the Defendant is recognized to have reached the failure to recover any longer.

2) Meanwhile, the Plaintiff asserted that the Defendant continuously demanded money and used to drive away the Plaintiff, and that the Defendant was mainly responsible for the marriage dissolution. The Defendant asserted that the Plaintiff was responsible for the Plaintiff, who was going to and went out of the Plaintiff, and neglected to take care of the Plaintiff, such as the invitation and the operation of the Plaintiff. However, in light of the marriage life of the Plaintiff and the Defendant, the evidence submitted by the Plaintiff and the Defendant alone are insufficient to recognize that the primary responsibility of the marriage dissolution is limited to either of the parties.

3) Ultimately, even though the nationality of a different Plaintiff and Defendant could cause a couple’s conflicts due to cultural differences, economic problems, and differences in the way of thinking or opinion regarding family allocation, it appears that the failure of the best efforts to maintain a matrimonial life is the principal cause of divorce by, for instance, resolving such conflict situation in a friendly manner with trust and human beings, and thus, it is difficult to view that the responsibility for the failure of marriage lies in a certain portion of the marriage between the Plaintiff and the Defendant, and that the responsibility of either of them is much larger.

4) Accordingly, the claim for consolation money and counterclaim cannot be accepted.

3. Determination on the claim for division of property in the principal lawsuit

In principle, one spouse’s peculiar property shall not be subject to division of property. However, even if it is unique property, in a case where one party actively cooperates in the maintenance of the unique property and prevents the reduction thereof, or cooperates in the increase thereof, it may be subject to division of property (see, e.g., Supreme Court Decisions 97Meu1486, Feb. 13, 1998; 2002S36, Aug. 28, 2002).

In light of the following circumstances revealed through the aforementioned facts and the purport of the entire pleading, namely, ① the apartment of this case is a unique property acquired by the Defendant far prior to marriage; ② the period of the Plaintiff and the Defendant’s actual qualitative marriage is merely one year and four months; ③ during that period, the Plaintiff was negligent in domestic affairs while living in conflict with the Defendant, and even during that period, it is difficult to evaluate that the Plaintiff contributed to some domestic affairs, and that it was difficult to prevent the decrease in the amount of property in cooperation with the Defendant, and thus, the apartment of this case cannot be subject to division of property.

Therefore, the Plaintiff’s claim for division of property is rejected on a different premise.

4. Conclusion

Therefore, all of the claims for divorce between the principal lawsuit and the counterclaim of this case shall be accepted on the grounds of its merit, and all of the claims for consolation money and the claims for division of property in the principal lawsuit and the counterclaim are dismissed on the grounds of its merit. It is so decided as per Disposition.

Judges already appointed