In a case where Party B filed a divorce lawsuit against Party B on the ground that the marital relationship was broken due to Party B’s wrongful act, and the divorce and Party B’s claim for damages was finalized, and Party B entered into a contract offsetting Party B’s claim against Party B, and Party B filed a claim for damages on the ground of the failure of the marital relationship against Party C, the case holding that Party B and Party B jointly and severally liable as joint tortfeasor, and as long as Party B’s claim for damages was extinguished by offsetting Party B’s claim for damages against Party B’s claim for damages due to the failure of the marital relationship with Party B.

In a case where Party A filed a divorce lawsuit against Party B on the ground that the marital relationship was broken due to Party B’s wrongful act, and the divorce and Party B’s claim for damages against Party B was finalized, and Party B entered into a contract offsetting the claim for the division of property with Party B, and Party B filed a claim for damages on the ground of the failure of marriage against Party B, the case holding that Party B, as joint tortfeasor, bears the liability for damages to Party B as a joint tortfeasor, and provided that Party B, as long as Party B’s liability for damages was extinguished due to a set-off against Party B, the full amount of the extinguished obligation should be deemed to affect the other joint obligor, on the ground that the effect of the set-off contract was concluded with the obligee, and as Party B’s liability for damages was extinguished due to the set-off.

Article 418(1) of the Civil Act

Supreme Court en banc Decision 2008Da97218 Decided September 16, 2010 (Gong2010Ha, 1903)

Plaintiff (former Name: Plaintiff) (Law Firm Jeong, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm Good, Attorney Kang Jae-kin, Counsel for defendant-appellant)

Busan Family Court Decision 2012ddan31402 decided January 22, 2014

August 21, 2014

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 30,00,000 won with interest rate of 20% per annum from the day after the judgment of the court of first instance to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. On October 5, 2001, the Plaintiff and the Nonparty (former Nonparty et al.) had two minor children as the legal couple who completed the marriage report on October 5, 2001.

B. Around January 2011, the Nonparty joined the Edridton Association and became aware of the Defendant therefrom, and the Plaintiff also joined the same club around April 2011. The Plaintiff was introduced via the Nonparty.

다. 소외인은 2011. 2.경부터 차츰 귀가시간이 늦어지더니 2011. 3.경부터는 배드민턴 동호회활동 등을 이유로 새벽녘에 귀가하거나 외박하는 일이 잦았다.

D. From May 201, the Plaintiff is doubtful of the Nonparty’s external rating from around May 4, 201, and on June 4, 2011, the Nonparty asked the Nonparty to take out an external rating before the Nonparty goes to work, and the Nonparty went to work for a different time while denying the fact of the external rating.

E. On the same day, the Plaintiff was driving the Nonparty around the construction site where the Nonparty was working for the Defendant, and the Nonparty appeared to have a conversation with the Defendant on the following day. The Plaintiff was under a sudden behavior, prepared a written statement, and demanded the Defendant to read it to the Defendant. The Defendant: (a) determined that the use of the said written statement is what the Plaintiff would be; (b) the Plaintiff responded to the Plaintiff; (c) the Plaintiff was in full recording of the said conversation; and (d) the Defendant, upon being aware of the fact, agreed that the Plaintiff was subject to all civil and criminal punishment at the time of the passage; and (c) the Defendant was to receive all civil and criminal punishment on the part of the Defendant; and (d) agreed to transfer all property to the Plaintiff; and (e) again, the Plaintiff would be justifiable for each of the said written statements to the Plaintiff at the same time, stating the following additional purpose as the Nonparty’s signature or agreement at the same place. Furthermore, the Defendant did not make a signature or agreement.

The votes contained in the main text(h) denies all inappropriate relations with the non-party who is denied by the plaintiff for a long time, promises not to meet twice again, and receives all civil and criminal penalties at the time of the passage, and promises to transfer all property to the plaintiff additionally.

F. The Nonparty, who returned to the house on the same day and recognized that the relationship was inappropriate with the Defendant, was an obstacle to the letter.

G. On September 27, 2011, the Plaintiff filed a lawsuit seeking divorce, etc. against the Nonparty on this court’s 2012ddan52677, and the Nonparty also filed a counterclaim against the Plaintiff on February 28, 2012. This court rendered a final judgment on November 27, 2013, that “the Plaintiff and the Nonparty shall divorce the Plaintiff on the ground that the marriage relationship between the Nonparty and the Nonparty was disappeared due to the Nonparty’s unlawful act. The Nonparty calculated the amount of solatium damages to the Plaintiff at the rate of KRW 30 million per annum from October 12, 2011 to the date of full payment, and that the Plaintiff shall pay to the Nonparty KRW 55 million and the amount calculated at the rate of KRW 5% per annum from the day after this judgment became final and conclusive to the day of full payment.” This judgment became final and conclusive on February 18, 2014.

H. On February 19, 2014, the Plaintiff and the Nonparty drafted a “agreement on the payment of judgment money” with the content that the Nonparty shall pay to the Plaintiff, ① 30 million won for consolation money, and interest 14,120,547 won for the period from October 12, 201 to February 17, 2014, ② child support for 24 months for the children, ③ 1,213,333 won for the costs of lawsuit, and KRW 55 million for the division of property that the Plaintiff shall pay to the Nonparty (hereinafter “instant offset agreement”).

[Ground of recognition] Gap evidence Nos. 1, 4, 5, 6, Eul evidence No. 1, Gap evidence No. 3-1 to 3, and the purport of the whole pleadings

2. Determination on the claim

A. Determination on the cause of the claim

Comprehensively taking account of the purport of the entire pleadings, the following circumstances revealed: (i) the Nonparty was asked to prepare a written statement to the Plaintiff and commit an unlawful act with the Defendant; (ii) the Nonparty was sentenced to a judgment ordering the Nonparty to pay consolation money of KRW 30 million on the ground that “the marital relationship with the Nonparty who committed an unlawful act with the Defendant was broken down” in a divorce lawsuit between the Plaintiff and the Nonparty; and (iii) the judgment became final and conclusive; and (ii) the Defendant was the time of having committed an unlawful act with the Nonparty by reading each written statement prepared by the Plaintiff on June 4, 2011 (i) even if the Defendant refused to sign the above written statement, it may be deemed that the Plaintiff’s act of reading each written statement was time of unlawful act, and (iii) the Defendant’s newly prepared statement that “the Nonparty would be subject to punishment for a civil or criminal act at the time of the Plaintiff’s future and that property was transferred to the Plaintiff’s non-party, even if it appears that the Plaintiff had no intention to use it for the same purpose as the Defendant’s new statement.”

Furthermore, as above, it is clear in light of the empirical rule that the plaintiff suffered a considerable mental suffering due to the failure of marriage between the plaintiff and the non-party. Thus, the defendant is obligated to pay consolation money in money. The amount of consolation money shall be determined as KRW 10 million in consideration of all the circumstances, such as the plaintiff and the defendant's age, occupation, property level, marriage period of the plaintiff and the non-party, and the degree of the defendant's responsibility against

Therefore, as the Plaintiff seeks, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 20% per annum from January 23, 2014 to the date of full payment, which is the day following the date of the first instance judgment, to the day of full payment.

B. Judgment on the defendant's defense

1) The defendant's assertion

The defendant asserts that the non-party, by entering into the instant offset contract between the plaintiff and the non-party, all of the defendant's obligations related to non-party's non-party joint and several liability

2) Determination

A) Even in cases where one of the vicarious debtors jointly and severally liable has set-off a counterclaim against his/her creditor, the purpose of the set-off is to be achieved with the same actual satisfaction as the repayment, payment in kind, or deposit was performed. As such, the effect of extinguishment of the obligation arising out of the set-off ought to also be deemed to extend to the other vicarious debtors jointly and severally liable as to the total amount of the extinguished obligation. This also applies to cases where one of the vicarious debtors jointly and severally liable has entered into a set-off contract with the creditor. Furthermore, this legal doctrine is not affected by whether the creditor was aware of the existence of the other vicarious debtors at the time of the set-off or set-off contract (see Supreme Court en banc Decision 200

B) In light of the above legal principles, the public health unit, the defendant, and the non-party jointly and severally liable to the plaintiff as joint tortfeasor. The non-party, on February 19, 2014, concluded a set-off contract between the plaintiff and the non-party to set off his own consolation money obligation against the plaintiff and the non-party on an equal amount. Thus, as long as the non-party’s liability with larger responsibility is extinguished as a set-off, its effect extends to the whole amount of the defendant’s consolation money obligation, and it is reasonable to deem that the defendant’s obligation was completely extinguished.

C) Therefore, the defendant's above defense is justified.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed due to the lack of reason. Since the judgment of the court of first instance is partially unfair, the defendant's appeal shall be accepted, and the part against the defendant in the judgment of first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be

Judges Kim Jong-hee (Presiding Judge)