(영문) 제주지방법원 2015.7.22.선고 2014르1025 판결

1. Of the judgment of the court of first instance, the designation of a person with parental authority and a custodian, and the claim for child support shall be changed as follows:

A. The Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) shall be designated as the joint parent of the principal of the case, and the Plaintiff (Counterclaim Defendant) shall be designated as the custodian of the principal of the case.

B. From July 23, 2015 to the Plaintiff (Counterclaim Defendant)’s child support, the Defendant (Counterclaim Plaintiff) paid KRW 500,000 per month to the end of each month from July 23, 2015 to September 5, 2029, the day before the principal of the case reaches the majority.

2. All remaining appeals by the Plaintiff (Counterclaim Defendant) are dismissed.

3. The total costs of the lawsuit shall be borne, respectively, by the Plaintiff (Counterclaim Defendant) for 40% in total, the principal lawsuit and the counterclaim, and by the Defendant (Counterclaim Defendant) for the remainder.

Purport of claim and appeal

1. Purport of claim

(a) Main claim;

The plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") are mixed with this. The defendant shall pay 20 million won as consolation money to the plaintiff at the end of each month the amount of 5% per annum from the day following the day of service of the principal claim and the day of service of the copy of the application for change of the cause of the claim to the plaintiff, and 20% per annum from the next day to the day of the judgment of this judgment. The plaintiff shall be designated as the person in parental authority and the guardian of the principal of this case. The defendant shall pay 50 million won per month to the plaintiff as the child support of the principal of this case from June 1, 2014 to the day when the principal of this case reaches the majority.

(b) Counterclaim;

The Defendant and the Plaintiff are divorced. The Plaintiff shall pay 30,00,000 won as consolation money to the Defendant at the rate of 20% per annum from the day following the day of service of a copy of the claim for the counterclaim and the application for modification of the cause of the counterclaim to the day of full payment. The Defendant shall not be appointed as the person with parental authority and the guardian of the principal of the case. The Plaintiff shall pay to the Defendant 50,000 won per month from the day following the day of service of a copy of the claim for the counterclaim and the application for modification of the cause of the counterclaim as the child support of the principal of the case until the principal of the case reaches his majority.

2. Purport of appeal

The part against the plaintiff in the judgment of the first instance shall be revoked. The judgment such as the description of the purport of the claim in the lawsuit shall be sought, and the defendant's counterclaim corresponding to the above revoked part shall be dismissed.

Reasons

The principal claim and counterclaim shall be judged together.

1. Applicable law;

Since the defendant and the principal of the case have a habitual residence in the Republic of Korea as a citizen of the Republic of Korea, the proviso of Article 39 of the Private International Act and the proviso of Article 45 of the Private International Act regarding divorce, etc. are subject to the designation, etc. of a person with parental authority and a custodian of the principal of the case, each of the Korean

2. As to whether the litigation conducted by the plaintiff in the first instance is unlawful

A. In the first instance trial, the Plaintiff asserted to the effect that the litigation conducted by the Plaintiff is null and void, since the Plaintiff voluntarily appointed the Plaintiff’s attorney and brought the instant lawsuit against the Defendant for the purpose of divorce by taking advantage of the fact that the Plaintiff was irrelevant to domestic law from Vietnam.

B. However, in light of the fact that the Plaintiff’s letter of delegation of a lawsuit submitted in the first instance trial includes the Plaintiff’s writing signature, and that the said letter of delegation of a lawsuit was notarized by a notary public on February 26, 2014 by No. 346, such as the name of the law firm, etc. on February 26, 2014, the Plaintiff appears to have directly appointed the legal representative of the first instance trial and written the letter of delegation of lawsuit

C. Each entry in the evidence Nos. 22 through 24 submitted by the Plaintiff at the trial room is related to the other case in which the Plaintiff’s attorney was the progress of the first instance trial, and there is no relation to this case. Therefore, the content of each of the above entries alone is insufficient to recognize the above assertion, and there is no evidence to acknowledge it otherwise. Ultimately, the above assertion that the litigation conducted by the Plaintiff is null and void is without merit.

3. Facts of recognition

A. The plaintiff is a foreigner with Vietnam's nationality on May 29, 1987, and the defendant is a national of the Republic of Korea who is a citizen of March 6, 1965.

B. On September 4, 2009, the Plaintiff entered the country’s spouse (F-2-1) status, and completed marriage with the Defendant on September 4, 2009, and was born on September 6, 2010.

C. Around September 1, 2010 when the Plaintiff’s childbirth was imminent, the Defendant invited the Plaintiff’s parents in Vietnam to live together with the Plaintiff’s care. At present, the Plaintiff’s parents are residing in Korea.

D. On May 201, the Defendant participated in multicultural family events held at ○○○○○○○ in around May 201, and gave rise to the winning of a foreign identification ticket at an event to send the foreign identification to friendship, and the family, including the Defendant, has reached Vietnam from November 10, 201 to November 24, 2011.

E. On April 2012, when the principal of the case was attending a child care center, the Plaintiff obtained permission by deeming that he/she would wish to attend the child care center, and thereafter became attending the ○○ factory located in ○○○. The Plaintiff sent the principal of the case to the child care center at around 09:30, and was working in the above factory from around 10:00 to 16:00, the Plaintiff received the principal of the case who returned to the child care center at around 16:30.

F. At the factory where the Plaintiff was working, there were several Vietnam workers who work as seafarers, and the Plaintiff received a lot of help from the said workers of Vietnam to adapt to their lives in Korea. However, the Defendant was dissatisfied with the Plaintiff’s friendly relationship with the male workers, and the Plaintiff was doubtful that the said male workers had committed unlawful acts with the said male workers. The Defendant’s above suspicions led to considerable conflict between the Plaintiff and the Defendant.

G. On May 29, 2014, the Plaintiff entered a shelter for female immigrants who had the principal of the case and had the principal enter the shelter for foreign women. The period of stay in the Republic of Korea of the Plaintiff is until December 13, 2016.

H. Meanwhile, the Defendant, as a seafarer, ordinarily worked at the sea of one to two weeks, and returned home. The Defendant mainly departs from the sea of 16:00 and returned to the port of 07:00 on the following day, and he again goes to work at the port of 15:00 on the following day. The Defendant, while serving as a seafarer, has income of 200 to three million won.

I. The defendant married with Kim○ on March 28, 1984, before the marriage with the plaintiff, but was divorced on May 8, 2009, and two children who were born on December 30, 1983 and September 14, 1985 between the former and the former and the former.

[Basis] Facts without dispute, Gap evidence 1 through 7, Gap evidence 8-1 through 4, Gap evidence 9-1 through 4, Gap evidence 15, Gap evidence 16, Eul evidence 4-1, 2, Eul evidence 6-1, 6-2, and the purport of the whole pleadings

4. As to the principal lawsuit, counterclaim divorce and solatium claim

A. As to the principal lawsuit and counterclaim divorce claim

1) "When there exists a serious reason for making it difficult to continue the marriage, which is a cause for judicial divorce under Article 840 subparagraph 6 of the Civil Act" means the case where the marital relationship between the couple has broken down to the extent that it is impossible to recover and compelling the continuance of the marital life to the extent that it would result in an unreparable pain for one spouse. Determination of the intention to continue the marriage, the existence of intention to continue the marriage, the existence of the party's liability for the cause of the failure, the existence of a child, the age of the party, the livelihood security after the divorce, and other circumstances of the marital relationship, should be taken into consideration equally. If it is recognized that the marital relationship between the couple has ceased to exist to the extent that it is impossible to continue the marital relationship in light of such circumstances, a claim for divorce shall be accepted unless it is deemed that the plaintiff's liability for the cause of the failure is greater than the defendant's liability (see, e.g., Supreme Court Decision 90Meu1067, Jul. 9, 1991).

2) In light of the legal principles as to the instant case, it is reasonable to view that the marriage relationship between the Plaintiff and the Defendant has reached a failure to complete the procedure to the extent that it would no longer be recovered due to the loss of patriotism and trust, in full view of various circumstances revealed in the pleadings of the instant case, including the following: (a) the Plaintiff and the Defendant had been suffering from infertility and conflict for a considerable period after marriage, from May 2014 to the present date; and (b) both the Plaintiff and the Defendant have sought divorce with the principal lawsuit of the instant case and the counterclaim; and (c) both the Plaintiff and the Defendant have not seen the form of active change to improve marital relations

3) Furthermore, with respect to the liability for the failure of bankruptcy, the defendant is also liable for the failure of the marriage between the plaintiff, who was born from Vietnam and has not been given due consideration to helping the plaintiff's living in the Republic of Korea where he had a considerable amount of interest with the plaintiff, and was in irrelevant to domestic affairs with the reason that the plaintiff performed the act outside his country. Although there is no clear ground that the plaintiff committed the act of misconduct, the defendant who caused the plaintiff to lose the plaintiff's trust due to the suspicion of the plaintiff's misconduct is also liable for the failure of the marriage of the defendant, even though he knew that the defendant opposed and doubtfuls the plaintiff to be able to understand it, he did not make sufficient efforts to understand it, and invited the plaintiff to understand it, and did not make any special efforts to restore the relation with the defendant, and each of the above plaintiff and the defendant are also liable for the failure of the marriage between the plaintiff and the defendant.

B. Determination on the claim of consolation money against the principal lawsuit and counterclaim

As seen earlier, as long as the responsibility of the Plaintiff and the Defendant for the failure of a marriage is equal to that of the other spouse, the Plaintiff and the Defendant’s claim for consolation money on the premise that the other spouse is more responsible for the failure of a marriage, is without merit.

5. As to the designation of a person with parental authority and a custodian

A. Parent’s right and duty to care for a minor is a minor’s right and has a direct impact on the welfare of the minor. Therefore, when parents divorce a minor, it shall be determined as a direction that is most helpful and appropriate for the growth and welfare of the minor, by comprehensively taking into account all the elements such as the minor’s sex and age, parents’ petence and intent to rear the minor, whether the minor is a parent, whether the father and mother have economic ability necessary for fostering, whether the father and mother intend to provide it, and whether the method of fostering is reasonable, reasonable, and mutual assistance between the father and the minor, friendly density between the father and the minor, and the minor’s intent (see, e.g., Supreme Court Decisions 208Meu380, May 8, 2008; 201Meu465, Apr. 13, 2012).

(b) Designation of a custodian;

In full view of the following circumstances, it is desirable to designate the Plaintiff as the person fostering the principal of the case for the smooth gender and welfare of the principal of the case, in full view of the details of the marriage and failure of the Plaintiff and the Defendant, the age of the principal of the case, and the written evidence Nos. 8-1 through 4, 9-1 through 4, and 17 through 20, respectively.

① Considering the result of the family survey conducted in the first instance trial and the statement made in the court of the Plaintiff and the Defendant’s trial, the Defendant appears to have been a plan to keep the principal of the case in question, if the principal of the case is designated as a person having custody of the principal of the case, on the one hand, to send the principal of the case to a senior mother in the Gyeong-gun of Gyeongnam-gun, and before the principal of the case is admitted to an elementary school, the Plaintiff appears to have been a plan to keep the principal of the case in custody. In light of the fact that the principal of the case was born on September 6, 2010, and is now at the age of five years and his parents, including his parents, and that the principal of the case in question grow in an environment that is separated from his father or mother, it seems that the principal of the case in question would be a major address to the principal of the case in question. In addition, in light of the Plaintiff’s nationality, all parents currently reside in Korea, and their intention to continuously rear the principal of the case, it is difficult to determine the principal of the Plaintiff.

② In filing the instant lawsuit, the Plaintiff did not appear to have a consistent attitude, such as requesting the designation of the Defendant as the person with parental authority and the custodian of the instant principal, but again requesting the Plaintiff to designate the Plaintiff and revising the purport of the claim. However, this seems to have not appeared to have failed to have a consistent attitude temporarily due to economic and cultural differences in the process of considering the divorce with the Defendant. The Plaintiff expressed its intent to rear the principal of the instant case consistently in the past trial.

③ The Defendant asserts that the Plaintiff’s right of fostering the principal of this case is not due to the difficulties toward the principal of this case, but due to the departure from Vietnam when the Plaintiff divorced from the Defendant. It is true that the Plaintiff would have obtained departure order against the Plaintiff when the Plaintiff divorced from the Defendant due to the instant lawsuit in a situation that was not designated as the person having custody of the principal of this case. However, in light of the situation where the Plaintiff’s right of fostering the principal of this case was in the custody of the principal of this case rather than the Defendant, it cannot be concluded that it is inappropriate for the Plaintiff to rear the principal of this case solely based on the possibility that the above departure order should be made.

④ Furthermore, the Defendant asserts to the effect that the Plaintiff continued to engage in Vietnam labor and misconduct during the marriage life, which is likely to have a significant impact on the growth of the principal of the case. However, it is not enough to recognize that the Plaintiff engaged in X and misconduct only with the materials submitted by the Plaintiff during the marriage life (X has wife and food, and returned to Vietnam upon the expiration of the period of stay). In such a situation, it is difficult to deem that the Plaintiff’s parenting environment is inappropriate solely on the ground that X is likely to re-entry into the Republic of Korea.

⑤ Meanwhile, the Plaintiff received 162 points out of 200 in the 35th Korean Language Ability Test, which was implemented in 2014, and was assessed as Grade 2. According to the result of the said test, the Plaintiff’s hearing ability is a level to understand and see the content of personal dialogue or discourses related to daily life, and to understand simple practical text, and the reading ability is a level to read and understand the practical text and explanation related to daily life, and it is a level to understand the practical text, such as a simple advertisement or instruction, which is frequently connected to the real life. In addition, the Plaintiff acquired a driver’s license. In light of these circumstances, even though the Plaintiff did not obtain a fixed income while maintaining her marital life with the Defendant, it appears that the Plaintiff could create an economic environment for fostering the principal of the case by his own effort (in the future, the Plaintiff’s economic activities are significant).

1) The parental authority is the right and duty to protect and educate a child, and the rearing is the fostering of a child into a person with a sound character in both sides of the body and the mind. Therefore, the core contents of the parental authority can be said to be rearing, and it is true that it is a decision for "the conformity of a person with a person with parental authority with a person with parental authority with a person with parental authority" for the welfare of the child

2) However, in the instant case, the Plaintiff is still not well-known to the social and cultural environment of Korea as a foreigner, the Defendant also has a considerable interest in the growth environment of the principal of the instant case by asserting the right of fostering the principal of the instant case, and considering the gender and age of the principal of the instant case, the physical and mental health of the parents, the parents’ economic situation, etc., it is deemed that a close cooperation is necessary for fostering the principal of the instant case thereafter. Accordingly, the Plaintiff and the Defendant shall be jointly designated as a person

D. Determination on the claim for child support

1) As long as the plaintiff was designated as the fostering of the principal of the case, the defendant is obligated to share the child support for the principal of the case as his father.

2) Therefore, in full view of the various circumstances revealed in the pleadings of the instant case, such as health class, the Plaintiff and the Defendant’s occupation, income, the age of the principal of the instant case, the situation of custody, and the criteria for calculation of child support publicly announced by the Seoul Family Court, as to the amount of child support to be borne by the Defendant, it is reasonable to determine the future child support of the principal of the instant case as KRW

3) Therefore, it is reasonable to determine that the Defendant shall pay to the Plaintiff the amount calculated by applying the rate of KRW 500,000 per month from July 23, 2015, which is the day before the principal of the case reaches the majority, to September 5, 2029, which is the day before the date of the instant judgment, on the last day of each month.

6. Conclusion

Therefore, both the plaintiff and the defendant's claims for divorce against the principal lawsuit and counterclaim are justified. All claims for consolation money for the principal lawsuit and counterclaim are dismissed as it is without merit. The matters concerning the parental authority and fostering of the principal of the case are determined as above. [In this case, there is no separate consultation about the visitation right for the principal of the case, and the parties do not have any special assertion about it (in case of family research conducted by the court of first instance, until December 13, 2016, the plaintiff may be designated as the care holder for the principal of the case, and the defendant may conduct the visitation right with the principal of the case, and thereafter, the defendant shall be designated as the care holder for the principal of the case, and thereafter, the plaintiff shall be designated as the care holder for the principal of the case, and the plaintiff shall be removed from the judgment of the court of first instance on December 13, 2016, the remaining part of the plaintiff's right to take care of the principal of the case shall not be accepted differently from the judgment of the court of first instance.