2019Reu21419 (principal action) Divorce and action of claiming consolation money

2019Reu21495 (Counterclaim) Divorce and solatium

A

Section B.

Busan Family Court Decision 2018Ddan208204 Decided October 30, 2018

June 24, 2020

July 22, 2020

1. The part against the defendant regarding the claim of consolation money in the judgment of the court of first instance regarding the claim of consolation money shall be revoked, and the claim of consolation money against the plaintiff (the counterclaim defendant) which falls under the above revocation part shall

2. Defendant (Counterclaim Plaintiff)’s appeal and this court’s counterclaim are dismissed, respectively. 3. Total costs of the lawsuit are assessed against each party, including the principal lawsuit and the counterclaim.

1. Claims;

A. Main suit: Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) and Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”)

A. The defendant delivered to the plaintiff KRW 30 million and the plaintiff the written complaint of this case.

The amount shall be paid at the rate of 15% per annum from the day to the day of full payment.

B. Counterclaim: The plaintiff 20 million won as consolation money to the defendant and the plaintiff 20 million won as to the counterclaim of this case

From the day following the month to the day on which the appellate court rendered a judgment, 5% per annum and the day after the day of full payment.

corporation shall pay the amount calculated by each ratio of 12 per annum to 12 per cent (the defendant shall not be

A counterclaim was filed to only seek payment of royalties.

2. The place where the appeal is filed;

The part against the defendant among the judgment of the first instance, shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

(see, e.g., Supreme Court Decision 201Da124888 delivered on May

The main lawsuit and the counterclaim shall be filed together.

1. Facts of recognition;

A. On September 19, 201, the Plaintiff, a male of Korean nationality, and the Defendant, a female of Korean nationality, reported marriage on September 19, 201.

B. On June 17, 2018, Defendant filed a report with the police by asserting that the Plaintiff’s siblings assaulted the Defendant, and went to the office around June 2018. The Plaintiff and the Defendant were selected from June 2018 to June 26, 2018, and the Plaintiff filed the instant lawsuit on June 26, 2018.

[Ground of recognition] Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 2, and 4, the whole purport of the pleadings, and the purport of the whole pleadings; 2. Determination as to the claim for divorce and consolation money, and counterclaim damages

(a) Applicable law;

The Civil Act of the Republic of Korea (the proviso to Article 39 of the Private International Act, and Article 32 (1) of the International Judicial Act, respectively, shall apply to the claim for divorce)

B. A claim for divorce of a principal lawsuit: A ground specified in Article 840 subparagraph 6 of the Civil Act exists. A claim for consolation money and counterclaim consolation money is without merit.

D. The grounds for judgment 1) In light of the fact that the Plaintiff and Defendant were separate from June 2018 to June, 2018, the Plaintiff sought a divorce as the principal lawsuit, and the Defendant also sought a solatium as a counterclaim on the premise that the marital relationship has disappeared, and that both the Plaintiff and the Defendant are deemed to have no intention to recover the marital relationship, the marriage between the Plaintiff and the Defendant was no longer interrupted.

2) In light of the above-mentioned facts and the circumstances surrounding the failure of marriage recognized by each of the evidence mentioned above, the Plaintiff and the Defendant’s responsibilities against the failure of marriage are deemed equal.

As to this, although the Plaintiff was living in one house with the Defendant, from around B, 2015, the entire daily life had not been separated from that of the Defendant, and on June 21, 2018, the Defendant went out without explaining any reason, and the cause attributable to the Defendant was attributable to the Defendant. Meanwhile, the Defendant asserts that the Plaintiff’s penalty was broken down due to the Defendant’s fault. Meanwhile, the Plaintiff committed assault against the Defendant on June 17, 2018, and the Defendant got out of one’s place at one’s own place. The Plaintiff unilaterally ceased to contact with the Defendant, such as verbal abuse that the Plaintiff would turn back back again to the Defendant, and changing the mobile phone number, and thus, the marriage failure was unilaterally ceased to exist, and thus, the Plaintiff and the Defendant’s claim for consolation money against the Plaintiff and the Defendant were insufficient to recognize that the marital failure became the principal cause due to the fault of one of the parties. Therefore, both the Plaintiff and the Defendant’s claim against the Plaintiff and the Defendant are rejected.

3. Conclusion

The plaintiff's claim for divorce of the principal lawsuit shall be accepted for the reason that it is reasonable, and the defendant's claim for consolation money and the defendant's counterclaim shall be dismissed for each reason. Since the part of the judgment of the first instance as to the claim for consolation money in the principal lawsuit is unfair with some different conclusions, the part against the defendant as to the claim for consolation money in the first instance judgment against the defendant in the principal lawsuit shall be revoked, the plaintiff's claim for consolation money corresponding to that part shall be dismissed, and the remaining appeal by the defendant and the defendant's counterclaim raised

Judge Lee Il-ju

Judge O Sang-hun

Judges Dogdogia