In a case where a divorce claim is dismissed, and a counterclaim is cited, whether it is necessary to examine and determine the property division claim joined in the principal lawsuit (affirmative with qualification)

Unless there exist special circumstances such as the Plaintiff’s counterclaim, where the Plaintiff joined a divorce claim and the Defendant claimed a divorce as a counterclaim, it is reasonable to deem that the Plaintiff’s claim for division of property includes the claim to the effect that, among the Plaintiff’s claim for division of property, the divorce claim is not accepted and the divorce is ordered by the Defendant’s counterclaim. In such a case, the Plaintiff’s claim for division of property has the substance as a counterclaim against the Defendant’s counterclaim. In such a case, even if the Plaintiff dismissed the Plaintiff’s claim for divorce, accepted the Defendant’s counterclaim, and ordered the divorce of the Plaintiff and the Defendant, the fact-finding court shall determine the amount and method of division of property to the Plaintiff, taking into account all the circumstances, such as the amount of the property that the Plaintiff and the Defendant shared, and contributed to the formation of the property.

Article 839-2 of the Civil Act

Plaintiff (Attorney Lee Young-young, Counsel for plaintiff-appellant)

Defendant (Attorney Cho Jong-sik et al., Counsel for defendant-appellant)

Principal 1 et al.

Gwangju District Court Decision 200Da229, 410 Decided February 2, 200

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding division of property shall be reversed, and that part of the case shall be remanded to the Panel Division of the Gwangju District Court. The remaining grounds of appeal shall be dismissed.

1. Summary of the judgment of the court below

First, the court below rejected all the claims for counterclaim by the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") on the ground that the evidence presented by the plaintiff is insufficient to acknowledge the plaintiff's assertion that the plaintiff's marital relationship has reached the failure due to the reasons attributable to the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant"), and there is no other evidence to recognize the same. Thus, the court below rejected all the claims to designate the plaintiff as the person with parental authority and the guardian for the principal of each real estate listed in the separate sheet attached to the judgment of the court below as a divorce and the payment of consolation money and division of property, and to designate the plaintiff as the person with parental authority and the guardian for the principal of the case, and to claim payment of the child support. After recognizing the facts as stated in the judgment of the court below as to the defendant's counterclaim, the marital life of the plaintiff and the defendant is no longer difficult to continue due to the reasons attributable to the plaintiff. This constitutes a cause for judicial divorce, which constitutes a cause for divorce by the defendant, and at the same time requires compensation for consolation money to the plaintiff and the person with parental authority.

2. As to the remaining claims except the claim for division of property among the principal lawsuit and the counterclaim

In light of the records, the fact-finding and judgment of the court below on the cause and circumstance of the failure of the marriage of this case are just and acceptable, and there is no error of law such as misconception of facts due to violation of the rules of evidence against the reasons for the failure of the marriage, as otherwise alleged in the ground of appeal.

3. As to the claim for division of property

Unless there exist special circumstances, such as the Plaintiff’s counterclaim, where the Plaintiff joined a divorce claim and the Defendant claimed a divorce as a counterclaim, it is reasonable to view that the Plaintiff’s claim for division of property includes the claim to the effect that, among the Plaintiff’s claim for division of property, the divorce claim is not accepted, and the divorce is ordered by the Defendant’s counterclaim. (In this case, the Plaintiff’s claim for division of property has the substance as a counterclaim against the Defendant’s counterclaim) Therefore, even if the Plaintiff’s claim for divorce is dismissed, and the Plaintiff’s claim for divorce was accepted by the Defendant’s counterclaim and ordered the divorce of the Plaintiff and the Defendant, the fact-finding court should determine the amount and method of division of property in consideration of all the circumstances, such as the amount of property achieved by the Plaintiff and the Defendant’s cooperation and the degree of contribution to the formation of the property by both parties.

Nevertheless, in the instant case where there are no special circumstances, such as the Plaintiff expressed his intention not to claim the division of property, if the Plaintiff’s divorce claim based on the principal lawsuit is not accepted, the lower court did not examine the Plaintiff’s claim for division of property and determine the amount and method of division of property on the ground that the divorce claim based on the Plaintiff’s principal lawsuit was not accepted, even though having accepted the Plaintiff’s claim for divorce based on the Defendant’s counterclaim, it cannot be said that there was an error of law by misapprehending the legal doctrine on the claim for division of property, and it is obvious that such illegality has affected the judgment. Accordingly, the appeal pointing this out has merit.

4. Therefore, the part of the lower judgment against the Plaintiff regarding the claim for division of property is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)