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광주고등법원 2008로242 판결
이혼
Cases

208Ro242 Divorce

Plaintiff Appellant

(XXXXXX-XXXXXXX)

Address, Seoul Dongdong-dong 0- 000 apartment units

10,000 00,000

Attorney Lee Jae-won, Counsel for the plaintiff-appellant

Defendant Elives

김○(XXXXXX-XXXXXXX)

x)Yannam Mansan Ma------ 000 apartment-1 Dong.

heading

10,000 00,000

Principal of the case

1. 김▷♤ (xxxxxx-xxxxxxx)

2. 김 ☆ (xxxxxx-xxxxxxx)

The defendant is the same as the domicile and original domicile of the principal of the case.

The first instance judgment

Gwangju District Court Family Branch Decision 2008Dhap69 Decided November 18, 2008

Conclusion of Pleadings

April 17, 2009

Imposition of Judgment

June 5, 2009

Text

1. Revocation of a judgment of the first instance;

2. The plaintiff and the defendant are divorced.

3. The person having parental authority and the career for the principals of the case shall be the defendant.

4. The Plaintiff shall pay 600,000 won monthly to the Defendant for the child support of the principal of this case from the date this judgment became final to April 3, 2013, and 400,000 won each month from the following day until October 21, 2014.

5. The Plaintiff may interview and negotiate the instant principal as follows.

(a) The fourth day of each month from 12:00 to 18:00 of Sundays 12:00, at a place where the principal of the case wants, may freely meet or travel with the principal of the case, and may live or travel together for seven days each year during the vacation period of January and August.

B. Free telephone conversations, correspondence, and goods exchange with the case principal.

6. The total litigation costs shall be borne individually by each person.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The plaintiff and the defendant shall be divorced.

Reasons

1. Facts of recognition;

In full view of the purport of the entire pleadings, the following facts can be acknowledged in the evidence Nos. 1, 2, and 1, and 1.

A. On December 12, 1990, the Plaintiff and the Defendant gave birth to the principal of the case who is a minor child as a legally married couple who completed the marriage report.

B. On November 30, 1997, while the Plaintiff was running a matrimonial life with frequent drinking and outpatienting by the Defendant, the Plaintiff left a place to the effect that he was living separately by his opinion on September 30, 2003, but went back again on on September 10, 2003, only one month.

C. The plaintiff had been living separately from the plaintiff and the defendant for about 11 years from the first time after the withdrawal to the temporary home, except for the period of return to the temporary home. During the above separate period, the defendant has found the plaintiff, such as the defendant's whereabouts on several occasions, and the principal of the case has also left the plaintiff.

D. The Plaintiff, while living together with **** in early 2007, gave birth of a baby whose body weight was 2.4 km on February 12, 2008 between **** and **.4 km.

E. Meanwhile, since the plaintiff and the defendant commenced to separate as mentioned above, the defendant has been raising minor children with his mother's assistance so far.

바. 원고는 이 법원의 조정기일에 출석하여 '♥ 사이에 태어난 딸이 지속적인 치료를 받아야 하는데 현재 이혼이 되지 않은 상태이어서 자신의 자로 가족관계등록을 할 수 없어 치료가 어렵다. 피고와의 혼인생활은 회복할 수 없을 정도로 파탄되었으니 제발 새로이 태어난 아이의 치료와 양육을 위하여서라도 자신을 용서해 달라. 자녀들에게 미안한 마음이고 현재는 출산과 양육으로 경제활동을 할 수 없으나 형편이 나아지면 양육비를 부담하겠다. 현재와 같은 상태가 지속된다면 자살할 수밖에 없다. 부디 나중에 양육비를 부담하는 조건으로 이혼에 응하여 달라.'라는 취지의 요청을 하였고, 이에 대하여 피고는 '사건본인들이 원고의 귀가를 기다리고 있고 피고도 원고와의 혼인관계가 지속되기를 강력히 희망하고 있다. 사건본인들은 원고의 출산사실을 알지 못하며 원고는 이 사이에 태어난 아이를 ♥에게 맡기고 귀가하여야 한다. '라면서 원고의 요청에 응할 수 없다고 하여 조정이 성립되지 아니하였다.

2. The first instance judgment

As to the plaintiff's claim for divorce in this case on the ground that there is a serious reason that it is difficult for the plaintiff to continue the marriage between the plaintiff and the defendant, the spouse who is mainly responsible for the failure of marriage cannot, in principle, file a claim for divorce on the ground of the failure of marriage. However, even though the other party is objectively evident after the failure of marriage, there is no intention to continue the marriage, it is exceptionally allowed to claim for divorce by the responsible spouse only if there are special circumstances, such as the other party's failure to comply with the divorce in misunderstanding or retaliation sentiment (see, e.g., Supreme Court Decisions 2004Meu103, Sept. 24, 2004; 9Meu1213, Oct. 8, 199). According to the recognized facts, the plaintiff's claim for divorce in this case was found to have reached a situation where the marital life of the plaintiff and the defendant is currently unable to follow, but the other party's claim for divorce in this case's opinion to overcome the conflict with the other party's claim for divorce in this case.

3. The judgment of this Court

A. As to the claim for divorce

According to the above facts, the marital relationship between the Plaintiff and the Defendant is serious distress and re-confusably impossible to recover community suitable for marriage, and compelling the Plaintiff to continue the marriage with the Defendant to commit suicide. As such, the Plaintiff and the Defendant’s marital relationship constitutes “when there are serious grounds for continuing other marriage” as prescribed by Article 840 subparag. 6 of the Civil Act. However, if there are no other children in light of both spouses’ age and living period, it is considerably long time to protect the other spouse’s right as well as the other spouse’s mental, social and economic status, and thus, it is difficult for the State to recognize the other spouse’s right to seek divorce as a result of an abuse of the other spouse’s duty to protect the other spouse’s emotional distress and to protect the other spouse’s right as well as the other spouse’s right to claim divorce, and thus, it should be interpreted that the other spouse’s right to claim divorce should be removed from the other spouse’s right to claim divorce by reason of the other spouse’s inherent mental, and economic reason to protect the other spouse’s right to claim for divorce.

If it is impossible for a spouse to make a divorce even though the marital relationship has already ceased and is unable to be recovered, the assessment of the other party's reputation and incompetence will be accumulated, and the problem of bringing up a child is just back, and even if the spouse wishes to serve as the father or mother of the child, it can be a blick for the parent's responsibility of bringing up the child as it is difficult for the other party to interview and negotiate the child due to conflict with the other party. In addition, if a judicial divorce is not permitted on the ground that the other party's breach of duty during the marital life of the responsible spouse is not possible, if it is impossible to compensate for the breach of duty by the other party's claim for consolation money, then the divorce is imminent, as the other party's payment of consolation money in a large amount, and if there is no economic ability, it can be decided to escape from the status of a spouse who does not want to divorce for a long time due to the other party's financial ability. In addition, even if the marital failure becomes void due to the difference between the spouse and the other party's claim for divorce.

Unless there are special circumstances deemed necessary to maintain a marital relationship for the benefit of a child, such as where the family, educational, mental, and economic situation of a minor child born between the couple due to divorce, etc. is faced with a serious mental, social, and economic situation of a spouse, and thus, the divorce brings about a very harsh result to △△△△△, and thus, it is deemed necessary to continue a marital life even if considering the other party’s interests are considered necessary, or where maintaining a marital relationship is deemed necessary for the benefit of the child, such as where the family, educational, mental, and economic situation of a minor child born between the couple due to divorce, and where the happiness of the child might be seriously infringed, it is reasonable to allow a divorce

As to the instant case, the Plaintiff and the Defendant left 7 years of living together with the Defendant, the period of separate living is longer than 11 years, and children born between the Plaintiff and the Defendant are currently one-year high school and three-year old-school students, and they can deal with their own work and resolve them even without the Plaintiff’s care. However, the Plaintiff’s new newborn baby who was given birth is indispensable to be examined. At present, the Plaintiff is the most important thing to treat and rear the said newborn baby, but the Defendant is demanding the Plaintiff to return to the past life without considering the Plaintiff’s status. Thus, it is difficult to agree with the Plaintiff and the Defendant’s decision because it is difficult to accept the Plaintiff’s request for divorce because of the Plaintiff’s lack of family relation registration as his own person’s own person’s own person’s own person’s own person’s own person’s own person’s ability to engage in suicide, and thus, it is difficult to accept the Plaintiff’s claim for divorce, such as the Plaintiff’s mental or economic uncertainty, and thus, it is difficult to accept the Plaintiff’s claim for divorce and the Defendant’s new interest.

B. Ex officio determination on custody of a person with parental authority and a child

Furthermore, in light of the various circumstances such as the source revealed in the proceedings of this case, the defendant's marital life and failure, the age of the principal of this case, and the custody environment, it is reasonable to allow the defendant to exercise parental authority over the principal of this case and the custody of the principal of this case for the growth and welfare of the principal of this case. Thus, the defendant shall be designated as the person in parental authority and the custody of

In addition, as long as the defendant has been designated as the guardian of the principal of this case, the plaintiff is obligated to share the child support with the defendant as the mother of the principal of this case. In full view of the age and residence of the principal of this case, the age, occupation, property and economic ability of the plaintiff and the defendant, and other various circumstances shown in the arguments of this case, it is reasonable to determine the child support for the principal of this case as 300,000

따라서, 원고는 피고에게 사건본인들에 대한 양육비로 이 판결 확정일 다음날부터 사건본인 김▷♤이 성년에 이르기 전날인 2013. 4. 3.까지는 매월 600,000원씩을, 그 다음 날부터 사건본인 김이 성년에 이르기 전날인 2014. 10. 22.까지는 매월 400,000원씩을 매월 말일에 지급할 의무가 있다.

In addition, the plaintiff and the principal of the case who do not directly raise the principal of the case have the right to interview and negotiate each other, and it is judged necessary for the welfare of the principal of the case.

The method of exercising visitation rights shall be determined as prescribed in paragraph (5) of this Article.

4. Conclusion

Therefore, the plaintiff's claim for divorce of this case is accepted on the ground of its reasoning, and the court below revoked the judgment of the court of first instance and accepted the plaintiff's claim, and determine ex officio matters concerning the custody of the person with parental authority and person. It is so decided as per Disposition.

Judges

The presiding judge, judge and judge;

Note tin

1) 일본 최고재판소 1987. 9. 2. 선고 昭和61년(才)제260호 판결도 같은 내용이다.

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