2016dwards 13945 (principal action) Divorce

2017Ddiva 14044 (Counterclaims) Divorce, etc.

A (1965, South Korea)

Busan Address

Busan place of service

Busan District Court

Attorney Park Jae-hoon

Attorney Lee In-bok

B. (1987,000)

Busan Address

Attorney Park Jae-hoon

Attorney Lee In-bok

January 12, 2018

February 2, 2018

1. The plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced by counterclaim.

2. The Plaintiff (Counterclaim Defendant) pays 5 million won as consolation money to the Defendant (Counterclaim Plaintiff) and 15% interest per annum from January 3, 2018 to February 2, 2018, and 25% per annum from the next day to the day of full payment.

3. The plaintiff's main claim of this case and the defendant (Counterclaim plaintiff)'s remaining counterclaims are dismissed, respectively.

4. The costs of lawsuit are assessed against Plaintiff (Counterclaim Defendant) for 60% in total with the principal lawsuit and counterclaim, and the remainder is assessed against Defendant (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

Main Action: Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) and Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) are mixed. The Plaintiff and Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) are divided.

Counterclaim: The judgment of Paragraph (1) of this Article and the plaintiff pay to the defendant 30 million won as consolation money and 15% interest per annum from the day following the service of the counterclaim of this case to the day of full payment.

The principal lawsuit and counterclaim shall also be deemed to be a counterclaim.

1. Facts of recognition;

A. The plaintiff and the defendant (Korean nationality: the Philippines) are legally married couple who completed the marriage report in 2007, and the defendant began living together with the plaintiff in Korea around 2007, and there is no child under the chain.

B. Around 2007, the Plaintiff was introduced to the Defendant through the Defendant’s father’s father. Around 1997, the Plaintiff had a record of marriage with another female, and the Defendant also had only one woman with another male and female in the Philippines, and the Defendant became aware of these facts in the instant trial process and family survey process.

C. During the marriage period, the Plaintiff did not pay the Defendant’s living expenses at all, and if there were any items necessary for daily life, the Plaintiff directly sold them to the marina market. The Defendant did not have money, and there was no money, so that the Plaintiff’s ground level was less than KRW 1.2 million from the Plaintiff’s ground, and around November 2015, the Defendant used the Plaintiff’s credit card with KRW 1.2 million with the Plaintiff’s credit card and sent it to the drug value.

On November 2015, the Plaintiff, while knowing that the Defendant received cash services as above, assaulted the Defendant at this house’s “Bara,” and thereby suffered multiple ties, such as two or more parts requiring two weeks’ medical treatment, and drillings, etc.

D. On March 2016, the Defendant came to work in a new factory * He was going to go to the Dong of the Defendant in the neighborhood and go to the Plaintiff’s house only at the weekend. The Defendant did not open the door to the Plaintiff that he went to the Plaintiff’s house at the weekend, the Plaintiff reported the withdrawal to the Defendant on March 2016, and thereafter, the Plaintiff and the Defendant are living separately from the Defendant until now.

[Grounds for Recognition: Evidence Nos. 1 through 6, Evidence No. 1, Evidence No. 1, and each of the family investigation reports, as a whole;

[Purpose]

2. Determination as to the claim for divorce

The plaintiff asserts that the marriage between the plaintiff and the defendant did not state that he was married to the Philippines at the time of marriage, and used the money in return for the plaintiff's branch by taking out the money, and that the plaintiff's credit card was received 1.2 million won from the plaintiff's credit card around November 2015, and that the plaintiff's credit card was unilaterally notified about the plaintiff's credit card around March 2016 ***** after the plaintiff's unilaterally informed about the plaintiff's credit card and the plaintiff's credit card were left in the weekend, and the marriage between the plaintiff and the defendant was broken out due to the reason attributable to the defendant (a malicious abandonment, unfair treatment, or other serious reason which makes it difficult to continue the marriage).

In this regard, the fact that the defendant was married clearly to the plaintiff at the time of marriage seems to be the fact that the plaintiff was not able to do so. However, this circumstance is that the plaintiff was aware of during the divorce lawsuit of this case, and the marriage of this case was not caused by the failure of the plaintiff, and there was a history of marriage before the plaintiff. Accordingly, it is difficult to view that the plaintiff and the defendant are the responsibility of the plaintiff and the defendant.

In addition, as acknowledged earlier, there is no dispute over the fact that the defendant taken fakes from the plaintiff's land A and received cash services from the plaintiff's credit card, but this is also liable for the plaintiff's failure to pay living expenses (cash) to the defendant and provide economic support to the defendant. The above fact alone is insufficient to view that the defendant is entirely responsible for the dissolution of marriage, and the defendant's withdrawal after March 2016 also appears to open the original high-priced door and prevent the defendant from entering the house. Thus, it is difficult to recognize the plaintiff's assertion as it is.

Ultimately, the Plaintiff’s claim for divorce of the principal lawsuit of this case is without merit, as seen subsequent to the Plaintiff’s main liability for the failure of the marriage of this case.

3. Determination on counterclaim divorce and claim of consolation money

A. Demanding a counterclaim divorce

According to the above facts of recognition, the marriage between the plaintiff and the defendant did not pay the maximum amount of living expenses to the defendant as seen earlier, and the defendant abused the defendant on the ground that the defendant received the current gold service by bringing the plaintiff's credit card to the plaintiff's future. The defendant was unable to enter the place of residence and make a report of withdrawal from home, etc., and it seems that the plaintiff who abandoned the defendant caused the plaintiff's wrong loss to the extent that it would no longer be able to recover. This constitutes grounds for divorce under Article 840 subparagraph 2, 3, and 6 of the Civil Code, and thus, the defendant's counterclaim for divorce is justified.

B. Claim for solatium consolation money

Since it is obvious in light of the empirical rule that the defendant suffered from mental distress due to the failure of marriage caused by the plaintiff's cause attributable to the plaintiff, the plaintiff is liable for compensating the defendant for mental distress. The plaintiff is liable for compensating for mental distress, taking into account the period of marriage between the plaintiff and the defendant, part of the defendant's liability (such as deduction of future money from the plaintiff's ground A or receiving cash service by credit card), circumstances leading up to the failure of marriage, etc., five million won shall be determined.

Therefore, according to the defendant's claim, the plaintiff is obligated to pay as consolation money to the defendant 5 million won and as a result, the plaintiff's counterclaim from January 3, 2018, which was the day following the delivery date of the counterclaim of this case, to the plaintiff's objection against the existence of the obligation to pay consolation money, 5% per annum under the Civil Act until February 2, 2018, and 15% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day until the day of full payment.

4. Conclusion

Therefore, the defendant's counterclaim claim for a divorce is accepted on the ground of the reasons, and the counterclaim claim for a solatium is accepted on the ground of the same reasons, and the remaining claims are dismissed. The plaintiff's claim for a divorce on the principal lawsuit is dismissed on the ground of the reasons. It is so decided as per Disposition.

Judges Kim Jong-soo