2013Diva 1064 (principal action) Divorce and consolation money

2013divone 13814 (Counterclaims) Divorce, etc.

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December 3, 2014

March 4, 2015

1. In accordance with the principal lawsuit and counterclaim, the plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced.

2. Plaintiff (Counterclaim Defendant)’s claim of consolation money in its principal lawsuit and Defendant (Counterclaim Plaintiff)’s claim of consolation money in its counterclaim respectively.

3. The plaintiff (Counterclaim defendant) pays to the defendant (Counterclaim plaintiff) 135, 868, 698, and 5% interest per annum from the day following the day on which this judgment became final and conclusive to the day of full payment.

4. The costs of lawsuit shall be borne by each party in total with the principal lawsuit and counterclaim.

In the principal lawsuit: Plaintiff (Counterclaim Defendant, hereinafter referred to as Plaintiff, hereinafter referred to as Plaintiff) and Defendant (Counterclaim Plaintiff, hereinafter referred to as Defendant hereinafter referred to as “Defendant”) are subject to this.

The defendant is mixed with the plaintiff as consolation money of 50 million won and the complaint of this case against the plaintiff

It shall pay 20% interest per annum from the day after the duplicate is served to the day of full payment.

Counterclaim: The plaintiff shall be divorced from the defendant. The plaintiff shall be consolation money of 50 million won and the defendant, as well as the plaintiff

5% per annum from the day following the service of a duplicate of the counterclaim of this case until the day of rendering the judgment of this case, Da

The plaintiff shall pay 20% interest per annum from the date of full payment to the date of full payment. The plaintiff shall be subject to the payment.

High Court Decision 201Hun-gu, Busan, ○○ Dong * * * * ○○ Dong 2nd * * Dong * Dong *

ARTICLE *** After completing the registration of ownership transfer on Bright apartment (hereinafter referred to as “Bright apartment”) and KRW 100 million; and

To this end, 5% interest per annum shall be paid from the day this judgment became final to the day of full payment.

D. D. D. D.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Determination as to the principal lawsuit and counterclaim each divorce, each counterclaim, and each claim for consolation money

A. Facts of recognition

(1) Marriage and life

(A) The plaintiff and the defendant shall not have children under the sleep with the legal couple who completed the marriage report on February 21, 2001.

(B) The Plaintiff and the Defendant began married life based on the Defendant’s financial power.

(C) In addition, around June 2003, the Defendant actively lent KRW 75 million for the Plaintiff’s operation expenses of YD to the Plaintiff, such as subsidizing school expenses and supporting the Plaintiff to obtain various kinds of certificates of qualification, and around June 2003, the Defendant did not provide economic support for the Plaintiff’s family members, such as lending KRW 75 million for the Plaintiff’s operation expenses of Y and the Plaintiff’s father Y and FF food (hereinafter “FF food”) operated by the Defendant.

(D) On September 30, 2008, the Defendant sold F Food to KimG for KRW 950 million. By January 31, 2009, the Defendant received KRW 650 million from KimGG, but did not receive the remainder of KRW 300 million. Accordingly, the Defendant agreed to receive KRW 300 million per month from KimG until receiving KRW 300 million.

(E) Accordingly, the Defendant’s monthly income exceeded KRW 5 million by combining the above money, and the Defendant paid KRW 3 million per month to the Plaintiff as the cost of living.

(2) The reason why the failure has occurred.

(A) On September 201, 201, the Plaintiff sought to EE from HaH to Busan Young-gu** * the kindergarten in the Dong. The Defendant received KRW 200 million out of the sales price of KRW 300 million from KimGG and paid approximately KRW 130 million to the Plaintiff around September 201, 201 * * funds.

(B) However, the Plaintiff brought a lawsuit against Hah on March 7, 2012 for the collection of * kindergarten * kindergarten ** for the recovery of Hah, and adjusted the case to receive KRW 80 million from Hahh from the appellate court of the said lawsuit ( Busan High Court 2013Na7158).

(C) Meanwhile, as the proceeds of sale were recovered in KRW 200 million, the monthly amount that the Defendant received from KimG decreased. Accordingly, from October 201, the Defendant paid from around KRW 300,000 per month to the Plaintiff a monthly amount of KRW 1.5 million.

(D) On May 2012, the Plaintiff actively opposed that the Defendant would serve in *********, which led to the Plaintiff and the Defendant’s abusive language and verbal abuse.

(E) As such, the peaceful marital life of the Plaintiff and the Defendant was in crisis due to the Plaintiff’s kindergarten** the failure or failure of the Plaintiff, the Defendant’s living expenses*************** due to the difference of opinion related to the position of the head, etc., and the incompetence and conflict with each other has been deepened.

(F) In addition, since around September 2012, the Plaintiff claimed from Defendant and the Plaintiff, from around September 2012, the unpaid amount of living expenses, the issue of drilling, and the issue of transferring the Plaintiff’s Bright apartment under the name of the Defendant, the Plaintiff was separated from the Defendant on September 28, 2012.

(G) On October 9, 2012, the Plaintiff provided the Dongsan Agricultural Cooperative as security and additionally borrowed KRW 80 million from the said Cooperative.

(h) On December 7, 2012, the Defendant returned the Plaintiff’s surgery expenses, and filed a lawsuit against the Plaintiff’s model KimCC and ChokJJ [it was against the Defendant in the first instance trial lawsuit (the Busan District Court Decision 2012Da10376 Loans), but the Defendant was against the Defendant in the appellate trial (the Busan District Court Decision 2013Na13136) and the Defendant was dismissed on September 4, 2014 from the Supreme Court (Supreme Court Decision 2014Da35495) to the lower court.

(i) The Plaintiff decided to divorce with the Defendant, and filed the instant principal lawsuit on January 16, 2013, and also sought divorce and consolation money, etc. by filing the instant counterclaim on June 19, 2013.

(j) The Plaintiff and the Defendant have raised each of the instant lawsuits, and they are dissatisfied with criticism against each other until now.

[Grounds for recognition] Gap's evidence Nos. 1 through 5, 7, 9, 10, 26 through 30, and 40 (including the number of branches; hereinafter the same shall apply), Eul's evidence Nos. 1, 3, 5, 8 through 13, 15, 16, 17, 20, 22, 23, small banks among this court, small banks among this court, the results of orders issued by the Korean National Bank of Korea to submit each financial transaction information to the Korean History Co., Ltd. on August 7, 2013, the family investigation report by the family investigator, and the purport of the whole pleadings.

B. Determination

(1) Claim for a principal lawsuit and a counterclaim: Each of the grounds under Article 840 subparagraph 6 of the Civil Code exists.

(2) Claim for consolation money for each principal lawsuit and counterclaim: None of the grounds therefor.

[Grounds for Determination]

① Recognition of the failure of marriage: Taking into account the following circumstances: (a) the above fact of recognition and the fact that the plaintiff and the defendant want a divorce by going through a counterclaim with the principal lawsuit of this case; (b) the plaintiff and the defendant did not make any effort to recover from the marriage register even after each lawsuit of this case; and (c) the plaintiff and the defendant seem to have aggravated the marriage relationship between the plaintiff and the defendant to the extent that they are unable to recover from their marital register due to their strong criticism and disputes.

② The liability for failure of the Plaintiff and the Defendant is equal to that of the Defendant: (a) the above-mentioned recognition and the instant marriage relationship between the Plaintiff and the Defendant, which led to the failure of recovery; (b) the cause of the failure was not attributable to either of the Plaintiff and the Defendant, rather than due to the lack of dialogue between the Plaintiff and the Defendant, the method of expression, the difference between the other party, the lack of understanding of the other party, and the lack of efforts to improve one’s mistake; and (c) it seems that the Plaintiff and the Defendant were unable to smoothly resolve the conflict with each other. Therefore, it is difficult to hold either of the Plaintiff and the Defendant liable for failure.

C. Sub-committee

Therefore, according to the principal lawsuit and counterclaim, the plaintiff is divorced from the defendant, and the plaintiff's claim for consolation money and the defendant's counterclaim consolation money are dismissed.

2. Determination on the counterclaim for division of property

A. Details about the formation of the property;

(1) The Plaintiff was in charge of household affairs during the marriage period, and the Defendant operated FF food from around 1980 to September 2008 (which is a company that supplies ○○○ with yellow and domination stations, etc.).

(2) The Defendant provided considerable economic support to the Plaintiff’s family members as well as the Plaintiff during the marriage period.

(3) On September 30, 2008, the Defendant decided to sell F Food to KimG for KRW 950 million. By January 31, 2009, the Defendant received KRW 6550 million out of the above proceeds of sale, KRW 200 million around September 201, and KRW 100 million around January 201.

(4) On September 9, 2008, the Plaintiff and the Defendant purchased Bright apartment houses with loans of KRW 130,000,000,000 from the Defendant and the National Bank of Korea Co., Ltd., and completed the transfer registration under the Plaintiff’s name on October 1, 2008.

(5) Upon the Defendant’s request, the Plaintiff received a loan from Samsung Life Insurance Co., Ltd. (hereinafter “ Samsung Life Insurance”), and used the loan of KRW 30 million out of KRW 80,000,000 to Y on December 29, 2008, and KRW 25,000,000 to YL on July 15, 2010. The Plaintiff received repayment of KRW 15,000,000 from Y on July 30, 2010. The Plaintiff used the loan of KRW 30,000,000,000,000 to pay for Samsung life.

(6) This H deposited the amount of KRW 80 million in a kindergarten lawsuit with the deposited person as the Plaintiff.

(b) Property and value to be divided;

(1) Property to be divided: as shown in the detailed statement of the attached property to be divided.

(2) The value of the property to be divided;

Total amount of net property of the Plaintiff and the Defendant: 526,562,571 won

[Grounds for recognition] Gap evidence Nos. 13, 15, 16, 26 through 30, 40, Eul evidence Nos. 1, 12, 13, 15 through 20, 22, 23, the Industrial Bank of Korea of this Court, and the result of the order to submit each financial transaction information to the National Bank of Jina Co., Ltd. on August 7, 2013, the purport of the entire pleadings, as a result of the order to submit each financial transaction information,

C. Judgment on the Plaintiff’s assertion

The Plaintiff asserted that the aforementioned money should also be included in the Plaintiff’s negative property, but it is difficult to recognize it only by the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge it. The Plaintiff’s above assertion is without merit, since the Defendant did not pay the Plaintiff’s living expenses to the Plaintiff from around October 201, 201, and used it for the cost of living by lending money from the Plaintiff’s East and East NN, and the Plaintiff’s mother did not pay the loan money to the Plaintiff. The Plaintiff’s payment of the loan money was made on October 9, 2012.

(d) Ratio and method of division of property;

(1) Division ratio: Plaintiff 25%, Defendant 75%

[Based on the determination] The plaintiff and the defendant's contribution to the formation and maintenance of the property subject to division as seen earlier (the plaintiff has been in charge of domestic affairs during the marriage period, the defendant's property before marriage seems to be under the formation of the property of the married couple, and the defendant provided considerable economic support to the plaintiff's family members as well as the plaintiff's family members). Various circumstances shown in the arguments in this case, such as the process and period of the marital life in this case, the age of the plaintiff and the defendant, income, property, livelihood, etc.

(2) The method of division of property: In light of the various circumstances indicated in the pleadings of the instant case, such as the type of the property subject to division as seen earlier, the current status of the use thereof, and the intention of the current ownership and the process of acquisition, it is reasonable to settle the property subject to division by paying the amount equivalent to the excess or deficient portion as the amount of division of property, in a case where the value to which one party belongs exceeds or falls short of the value of the property to be properly allocated according to his contribution.

E. Property division amount to be paid by the plaintiff to the defendant: 135, 868, 698 won

(1) The shares of the Defendant according to the division ratio of property among the net property of the Plaintiff and the Defendant

Total net property of the Plaintiff and the Defendant 526, 562, 571 x 75 % = 394, 921, 928 won (hereinafter the same shall apply)

(2) The amount of the above (1) minus the Defendant’s net property

394, 921, 928 to 259, 053, 230 won = 135, 868, 698 won

(3) Property division amount to be paid by the Plaintiff to the Defendant: 135, 868, 698 won

F. Sub-committee

Therefore, the plaintiff is obligated to pay to the defendant 135, 868, 698 won and damages for delay calculated at the rate of 5% per annum from the day after this judgment becomes final and conclusive to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit and the defendant's counterclaim divorce claim are based on each of them. The plaintiff's claim for consolation money against the principal lawsuit and the defendant's counterclaim consolation money against the principal lawsuit are dismissed as they are without merit, and the counterclaim division claim is determined as above. It is so decided as per Disposition.

Judges Lee Jae-chul

A person shall be appointed.