(영문) 부산가정법원 2019.11.26.선고 2018드단208211 판결

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) the amount calculated by the rate of KRW 15 million per annum from August 2, 2018 to November 26, 2019, 5% per annum, and 12% per annum from the following day to the date of full payment.

3. The plaintiff (Counterclaim defendant)'s remaining claim for consolation money and all counterclaims and counterclaims of the defendant (Counterclaim plaintiff) are dismissed.

4. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) the amount of 50 million won as division of property and 5% interest per annum from the day following the day of this judgment to the day of full payment.

5. He shall designate a person with parental authority and a custodian of the case as the plaintiff (a counterclaim defendant).

6. Defendant (Counterclaim Plaintiff) delivered the principal of the case to Plaintiff (Counterclaim Defendant).

7. The Defendant (Counterclaim Plaintiff) against the Plaintiff (Counterclaim Defendant):

A. Payment of KRW 1,600,000 for the past rearing expenses of the principal of the case;

B. Payment of KRW 70,000 per month from December 1, 2019 to October 202, 202 at the expense of future rearing for the principal of this case shall be made at the end of each month.

8. The Defendant (Counterclaim Plaintiff) is entitled to have an interview with the principal of the instant case, or to have an interview with the principal of the instant case for a period determined by mutual agreement, and the Plaintiff (Counterclaim Defendant) may have an interview with the principal of the instant case.

the record shall cooperate to the maximum extent possible.

9. The costs of lawsuit shall be borne by each party in combination with the principal lawsuit and the counterclaim.

10. Paragraphs 2 and 6 of this Article may be provisionally executed.

Purport of claim

【Court of Second Instance】

Defendant 1, 5, and Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pay to Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 20 million won as solatium and 12% per annum from the day following the day of delivery of a copy of the complaint of this case to the day of full payment. The Defendant shall pay the Plaintiff KRW 32 million as Defendant’s care expenses for the principal justice of this case, and as Defendant’s future childcare expenses, the amount of KRW 1 million per month from the day following the day of delivery of a copy of the complaint of this case shall be paid to the end of each month. The Defendant shall pay the Plaintiff KRW 32 million as Defendant’s care expenses for the principal justice of this case, and as Defendant’s future childcare expenses, the amount of KRW 1 million per month from the day following the day of this judgment to 00 December 2022.

[Counterclaim]

The plaintiff shall be divorced by counterclaim and the defendant. The plaintiff shall pay to the defendant 20 million won as consolation money and 5% per annum from the day following the day of service of a copy of the counterclaim of this case until the day of this judgment, and 12% per annum from the next day to the day of complete payment. The plaintiff shall pay 140 million won as division of property.

Reasons

The following shall be deemed together with the principal lawsuit and the counterclaim.

1. Facts of recognition;

A. On February 7, 2000, the plaintiff and the defendant are legally married couple who reported marriage, and they are currently having the principal of the case at the same time as their children.

B. The Plaintiff, after the marriage, was frying and living in the natural father and son, brought up the principal of the case, brought up his children, and took care of him so far as his family members, and left him to live in his family. This Plaintiff’s old age was just and difficult, or the Defendant, who does not have any other reason, lost son’s life.

C. The Defendant, which received KRW 200 to KRW 3 million per month, paid the living expenses of KRW 60,120,000 per month of marriage, from around 205 to KRW 1,50,000 per month. Since the Plaintiff’s living expenses fall short of the Plaintiff’s living expenses, it is difficult for the Plaintiff to pay the said living expenses. As such, from 2012, △△△ and other workplace life was conducted concurrently.

D. Even after the Plaintiff was not working, the Defendant: (a) took care of the Plaintiff’s child rearing and house care; (b) did not want to share the Plaintiff, a female employee; (c) took enjoying hobbys, such as fishing; and (d) took place as a consequence of the Plaintiff’s work; and (b) did not have a marital relationship with the Defendant since 2015, when the Plaintiff was aware that the Plaintiff was the most military employee; (d) the Plaintiff was able to take care of the Defendant; and (c) did not have a marital relationship.

마 . 한편 피고는 2017 . 12 . 경 친구를 만나 귀가가 늦어진 원고에게 전화해 " 지금 몇 시고 ? , 내 밥은 ? , 9시쯤 온다고 해서 밥 안 먹고 있는데 언제 올 거고 ? , 내 밥은 ? " 이라 며 짜증을 내었고 , 이어 전화를 건네받은 원고의 친구와도 언짢은 소리를 주고받으며 , 다투었다 .

F. The Defendant, who had a chemical defect, had a strong desire for friendship with the Plaintiff returning home, and had the mind so that the Plaintiff had the upper limit of this, upon the Plaintiff’s request for divorce, the Defendant stated to the Plaintiff “I have filed a divorce lawsuit or would have a divorce lawsuit?” The Defendant stated to the Plaintiff “I have the intention to do so at the time? I have the intention to do so on December 8, 2018, and seems to have the Plaintiff’s interest at the Plaintiff’s request for play, and thus, the Defendant’s police at the Plaintiff’s request.

the report was filed.

G. On December 16, 2018, the Defendant: (a) reported to the police the instant principal of this case, which was frightened on the daily life of the instant principal; and (b) reported to the police by the Defendant the instant principal of this case, on the following grounds: (c) “In-house food tools?”; (d) the instant principal of this case was frightened to the back water of the Plaintiff, who was under the supervision of the appraisal, and was under the supervision of the appraisal; and (d) the Plaintiff, who was under the supervision of the Plaintiff’s own food deposit for two weeks; and (e) the instant principal of this case was frightened to the back water of the Plaintiff, who was under the supervision of the room, by taking out the original trees intentionally; and (e) thereafter, (e) the Defendant reported the instant principal of this case to the police. It was difficult for the Defendant to fright the instant principal of this day.

H. The Defendant, along with the instant principal, went back to the Plaintiff as a relative with the instant principal, but, during the dispute between the Plaintiff and the Plaintiff who was pending in the dispute, sent home to several months at the home room. On May 13, 2018, the Plaintiff, who was in the house, went home to the Plaintiff who was in the house and was in the house, was in the house. On the other hand, the Plaintiff, who was in the house, returned home to the instant principal while returning home to the instant principal, was in the Plaintiff’s education expenses for the instant principal, the instant apartment management expenses, and the gas charges on behalf of the Defendant, on behalf of the Defendant who did not pay the living expenses.

I. On June 27, 2018, the Plaintiff filed a divorce lawsuit against the Defendant.

(j) Meanwhile, around 2003, the Plaintiff and the Defendant purchased apartment units at the present place of residence (hereinafter referred to as “instant apartment units”) and registered them in the name of the Plaintiff, and the said purchase fund was held by the Defendant or was made up in the form of money, etc. Around July 2018, the Plaintiff was aware of the fact that the Plaintiff used insufficient living costs, etc. by obtaining short-term withdrawal from several financial companies, and that the Plaintiff was liable for debt, and used the instant apartment units as collateral without the Defendant and the Defendant used the remainder of the existing loan as living expenses. On September 21, 2015, the Plaintiff borrowed ○○ Won again on June 24, 2016, used the remainder as opening business expenses for partial Do governor, and received the Defendant’s debt with the credit card accumulated with the Defendant’s payment of unpaid living expenses and the Defendant’s credit card deposits, etc., and received the loan from the Defendant on July 6, 2018.

C. On June 13, 2019, the Defendant did not want to have the initial divorce, but determined that it was difficult to recover the relationship between the loan and the Plaintiff’s attitude, and filed the instant counterclaim.

[Ground of recognition] Gap 1 through 10 evidence (including the number of items with number), Eul 1 through 4, and the family investigation report by the family investigator, and the purport of the whole pleadings

2. Determination on the divorce and the claim of consolation money against each principal lawsuit and counterclaim

A. Claim for divorce of principal lawsuit: there are reasons under Article 840(3) and (6) of the Civil Act

B. Claim of consolation money: there are reasons within the scope of KRW 15 million.0 million.

D. Grounds for determination

1) Recognition of the failure of marriage: The above fact and the plaintiff appear to have a firm intention of divorce; the defendant did not have the original divorce but thereafter agreed to divorce, and thereafter filed a counterclaim; the plaintiff and the defendant decided on May 13, 2018; and the plaintiff and the defendant confirmed only the two parties' positions even though they proceeded with the date for pleading and mediation several times through this lawsuit, and they did not find any actual reason for recovery of marriage, in light of the various circumstances revealed in the argument of this case, the marriage between the plaintiff and the defendant was no longer restored.

2) The principal liability for the failure of marriage lies with the Defendant.

위 인정사실에서 본 바와 같이 , 원고는 서로 다른 배경과 환경에서 성장하여 대화 와 소통방식에 차이가 있을 수 있음을 고려하여 피고와 이해와 자제를 통한 원만한 대 화와 소통을 이끌어 내려는 충분한 노력을 다 하지 않은 채 어느 시점부터 피고에 대 한 불만을 앞세워 피고를 무심히 대해왔고 , 이에 더하여 피고와 일체 상의 없이 부부 의 유일한 공동재산이며 생활터전인 이 사건 아파트를 담보로 합계 ○원 상당 대출을 받았으므로 원고에게도 부부의 혼인관계 파탄에 중한 책임이 있다 . 그러나 한편 , 피고 는 가족에 대한 사랑과 애정으로 혼인기간 동안 고된 시댁 뒷바라지를 묵묵히 감내하 였고 가정살림과 커가는 사건본인들의 양육까지 도맡아온 원고의 노고를 당연시 생각 하였고 , 부족한 생활비를 벌기 위해 직장을 다니는 원고를 도와주기는커녕 제 때 식사 를 차려주지 않는다고 타박하면서 힘들게 하였다 . 나아가 피고는 원고가 혼인생활 내 내 부족한 생활비로 힘들어 하는 것을 알면서도 고정된 생활비만 지급할 뿐 이를 해결 하려는 노력을 하지 않았고 , 어느 시점부터 피고를 무심히 대하는 원고를 비난하며 잦 은 다툼을 벌이고 심지어 화를 참지 못한 채 원고에게 유리컵을 던져 상처를 입히고 칼을 들고 위협하는 등으로 원고와 가족들을 순식간에 공포로 몰아넣었다 . 피고는 혼 인기간 동안 원고와 가족들에게 보인 일방적이고 독선적인 언행들을 가볍게 생각하였 고 , 또 피고에게 그럴만한 사정도 있었다고 하지만 , 누적된 피고의 행동들이 원고와 피 고의 관계를 소원하게 하고 그 결과 부부의 혼인관계가 파탄에 이르게 된 결정적 원인 이 되었다 . 나아가 피고는 원고와 이혼을 원하지 않는다고 하면서도 원고와 별거한 후 생활비 지급을 중단하고 사건본인들의 교육비 마련에도 협조하지 않음으로써 원고와 갈등을 더욱 키웠다 .

3) The amount of consolation money: The amount of consolation money to be paid to the defendant shall be determined as KRW 15 million, considering all the circumstances shown in the arguments in this case, such as the period and period of marriage, the age of the plaintiff and the defendant, property status, etc., as above, that the marriage has broken down due to the defendant's mistake.

E. Sub-committee

Under this lawsuit, the plaintiff is divorced from the defendant, and the defendant is obligated to pay to the plaintiff the consolation money of KRW 15 million and to pay to the plaintiff damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from August 26, 2019, which is the day following the day on which a copy of the complaint of this case is served, to November 26, 2019, which is deemed reasonable to dispute the scope of the defendant's obligation to perform, and 12% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment.

3. Determination on the claim for division of property between the principal lawsuit and the counterclaim

(a) The point of time of division of property;

Property to be divided in the division of property at the time of judicial divorce shall be based on the date of the conclusion of the trial at the fact-finding court, but the circumstances shall be taken into account after the separation or failure of the property and until the time of the trial (see Supreme Court Decisions 9Meu906, Sept. 22, 2000; 95Meu1192, 1208, Dec. 23, 1996; 95Meu192, 1208, Dec. 23, 1996); however, in this case, it shall be based on the date of closing of argument; however, it shall be difficult for the plaintiff to file the lawsuit in this case on June 27, 2018, as long as there is no clear proof by the parties as to the fact that there was a change in the use of common life of the married couple, it shall be presumed that the property is owned in lieu of it (see Supreme Court Decision 2006Da1208, Jun. 27, 2018

(b) Property and value to be divided;

1) The value of the property subject to division and the value thereof are as shown in the Schedule of Detailed Statement of Property Divided. - - [Attachment omitted]

2) The determination of the parties’ assertion is as indicated in the column of “see, e.g., the parties’ assertion of the list of property subject to division.”

1) Division ratio: Plaintiff 40%, Defendant 60%

[Ground of determination] The details of acquisition and utilization of active property subject to division, the degree of contribution by the plaintiff and the defendant to the formation and maintenance thereof (in particular, the defendant's economic activities are the main source of the married life, the source of the formation and maintenance of the apartment complex in this case, the degree of contribution by the defendant, the degree of the defendant's contribution, the part of the loan granted to the apartment in this case as security by the plaintiff is reflected as the plaintiff's passive property, the background of the occurrence of income and property, the background of the occurrence of income, the age of the plaintiff and the defendant, occupation and income, the process and period of marital life, and the support factors of division of property, etc.

2) The method of division of property: (a) the property subject to division belongs to the Defendant under the current title prior to the division, taking into account the name and form of the property subject to division, the process of acquisition, the convenience of division, etc.; and (b) the Plaintiff shall have the remainder of the amount ultimately attributable to the Defendant under the said division ratio pay in cash to the Defendant.

3) The amount of division of property that the Plaintiff has to pay to the Defendant

【Calculation Form】

① The Defendant’s share of net property of the Plaintiff and Defendant according to the division of property

63,033,903 won = 105,056, 505 won ¡¿ 0.6)

(2) The difference between the amount under paragraph (1) and the defendant's net property.

54, 733, 337 won ( = 63,033, 903 - Defendant’s net property of KRW 8,300, 566)

③ Division of property that the Plaintiff pays to the Defendant

② The amount of KRW 50,000,000,000,000,00

D. Sub-committee

Therefore, the plaintiff is not entitled to pay to the defendant 50 million won as division of property and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when this judgment becomes final and conclusive to the day when full payment is made.

4. Determination as to the designation of a person with parental authority and a custodian, the claim for child support, the delivery of the principal of the case, and the visitation right (ex officio)

A. Part of a claim for designation of a person with parental authority and a custodian

Considering all the circumstances shown in the pleadings of the instant case, such as the circumstance where the marriage and failure of the instant case occurred, the intention and attitude of fostering the Plaintiff and the Defendant, and the opinion on the designation of the custodyer of the instant principal, age, and parenting, it is reasonable to designate the Plaintiff as the person with parental authority and the custodian of the instant principal for the smooth growth and welfare of the principal of the instant case.

B. Part of claim for child support

1) Occurrence of liability for payment of child support

The Plaintiff, on behalf of the Defendant, on May 13, 2018, was responsible for educational expenses for the principal of the instant case, management expenses, gas expenses, etc. for the instant apartment, and furthermore, insofar as the Plaintiff was designated as a person with parental authority and custodian who is the principal of the instant case, the Defendant is obliged to share the child support with the Plaintiff.

2) The amount of child support to be paid by the Defendant

A) Former child support

However, prior to the fact that the plaintiff bears educational expenses, etc. for the principal of the case after his stay, it seems that he lived with the principal of the case and paid a certain amount of living expenses, and that having the mother of the past child support be borne at one time may be excessively harsh to the defendant, taking into account all the circumstances revealed in the arguments of the case, including the plaintiff and the defendant's age, occupation and economic ability, property, age, health, attitudes and state of the principal of the case, details of prior disposition, child support calculation standard table (2017), etc., the past child support expenses of KRW 16 million shall be determined by taking into account the following circumstances: from July 30, 2018 to November 30, 2019:

B) Future child support

The amount of KRW 700,000 per month shall be determined at the end of each month from the following day until the principal of the case reaches his majority.

C. Delivery of the principal of the case (ex officio)

As long as the plaintiff is designated as a guardian of the principal of the case, the defendant who is currently pursuing the principal of the case is obligated to deliver the principal of the case to the plaintiff.

(d) Interview (ex officio).

On the other hand, the defendant, who does not live together with the principal of the case, has the right to contact with the principal of the case, unless it is contrary to the welfare of the principal of the case. Taking into account all the circumstances revealed in the arguments of the case, such as the circumstance where the marriage relationship of the case was broken down, the age and parenting status of the principal of the case, and the degree of contact with the principal of the case, it is reasonable to determine the frequency, time, and method of interview as stated in the order for the emotional stability and welfare of the principal of the case.

5. Conclusion

Therefore, the plaintiff's claim for divorce in the principal lawsuit shall be accepted for the reason that it is reasonable, and the plaintiff's claim for consolation money shall be accepted within the extent of the above recognition, and both the plaintiff's remaining claim for consolation money and the defendant's counterclaim divorce and consolation money shall be dismissed as it is without merit. It is so decided as per Disposition with regard to the principal lawsuit and counterclaim division of property, the person with parental authority and children, the designation of child support, the delivery of children and the visitation right (ex officio).

Judges

Judges already appointed

참조조문

-민법

-민법 제840조

-소송촉진 등에 관한 특례법

유사 판례

-대구가정법원 2017.6.13.선고 2016드단6226 판결

-부산가정법원 2018.8.23.선고 2017드단8292 판결

-부산가정법원 2021.1.14. 선고 2020드합200651 판결

-인천지방법원 부천지원 2009. 12. 2. 선고 2007드단9507(본소),2008드단3018(반소),2009드단5554(병합) 판결

-부산가정법원 2015.12.18.선고 2014드단202741 판결