2015u278 Divorce, etc.

2015285 Divorce, etc.

literatureA (********************)**)

Busan Address

Busan place of service

Seoul basic domicile

BB (*********************)**)

Address Changwon-si

Seoul basic domicile

Law Firm Doz.

Busan Family Court Decision 2013Ddan27677 decided July 3, 2015

March 10, 2016

April 7, 2016

1. The part against the plaintiff (the counterclaim defendant) who ordered payment in excess of the money ordered to be paid under the following among the part of the counterclaim consolation money in the judgment of the first instance, shall be revoked, and the defendant (Counterclaim plaintiff)'s counterclaim consolation money claim corresponding

The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 20 million won as consolation money and 5% per annum from April 15, 2014 to April 7, 2016, and 20% per annum from the next day to the day of full payment.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Defendant (Counterclaim Plaintiff).

1. Purport of claim

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced. The defendant pays 20,000,000 won to the plaintiff as consolation money. The defendant is a division of property.

The sum totaling KRW 451,885,000 and KRW 50,000,000 under the name of the plaintiff is equally divided.

Counterclaim: The plaintiff shall be divorced from the defendant. The plaintiff shall pay to the defendant 50 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 the judgment of the court of first instance, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the defendant's counterclaim is dismissed. This judgment is sought as stated in the purport of the lawsuit.

1. Determination as to the claim of divorce and consolation money against each principal lawsuit and counterclaim

(a) Facts of recognition;

1) The Plaintiff and the Defendant were legally married couple who completed the marriage report on April 21, 1980, and had three children who became adults among themselves.

2) The Plaintiff worked as a seafarer from March 1980 to March 201, 201, but failed to pay the living expenses due to stock investment, etc. In order to meet the child support and living expenses, the Defendant was dispatched to the military, the restaurant, etc., and the children were part-time during the study.

3) During the marriage life, the Plaintiff frequently expressed a desire to the Defendant and his children, and committed assault to the Defendant. In addition, the Plaintiff neglected to do so at home, such as making a religious fry, and during that process, the Plaintiff was also suspected of committing soup and making soup by using the frying female and so on.

4) On August 2012, the Plaintiff went to a house around August 2012, and on October 17, 2013, the Plaintiff demanded a divorce by having the Defendant prepare a letter of renunciation of property.

[Basis] Evidence Nos. 1, 2, 4, 13 (for each number, including a unit number; hereinafter the same shall apply), Eul 1, 5, 7, 8, 10, 14, 15, 19, 20, 23, and 24 of the witness of the first instance trial, and the purport of the whole pleadings

B. Determination

1) In addition to the above facts of recognition, the Plaintiff and the Defendant are under a long-term separate divorce, and the Plaintiff and the Defendant wished to divorce through the instant principal lawsuit and counterclaim, and the Plaintiff and the Defendant appear to have no possibility of restoring their trust and the marriage relationship. In light of the fact that the marriage between the Plaintiff and the Defendant were no longer recovered.

As such, the main cause of the failure of a matrimonial relationship is that the Plaintiff caused property by stock investment, etc., and made verbal abuse, assault against his/her family members, and unilaterally set up his/her house. The Plaintiff’s act constitutes a cause of judicial divorce under Article 840 subparag. 2, 3, and 6 of the Civil Act, and thus, the Defendant’s counterclaim divorce claim is reasonable.

Furthermore, it is clear in light of the empirical rule that the defendant suffered a considerable mental suffering due to the above error by the plaintiff's above error, and therefore, the plaintiff has a duty to pay the mental suffering in money. In full view of all the circumstances revealed in the arguments in this case, such as the plaintiff and the defendant's age, the period of marriage, the process of marital life, the details and responsibility of the marriage dissolution, etc., the amount of consolation money to be paid to the defendant shall be set at KRW 20,000,000.

2) On this ground, the Plaintiff asserts that the marital relationship between the Plaintiff and the Defendant was broken down due to the Defendant’s wrongful act, abandonment, unfair treatment, denial of marital life, etc. and sought a divorce and the payment of consolation money accordingly.

However, there is not sufficient evidence to acknowledge that the marital relationship between the plaintiff and the defendant has been broken down due to the defendant's mistake as alleged above by the plaintiff, just by the descriptions of the evidence Nos. 3, 9-2, 10, 14, and 15 of the evidence Nos. 3, 9-2, 15, and all claims for divorce and consolation money of the plaintiff

C. Sub-committee

Therefore, the plaintiff and the defendant are divorced by counterclaim, and the plaintiff is obligated to pay to the defendant consolation money of KRW 20,00,000 as consolation money and to pay damages for delay calculated by applying each rate of 5% per annum as stipulated in the Civil Act from April 15, 2014 to April 7, 2016, which is the day following the day when the plaintiff served a duplicate of the counterclaim of this case, to the day when the decision is rendered, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment.

2. Determination on the claim for division of property at the principal lawsuit

(a) Financial status;

1) Facts of recognition

On August 2012, the plaintiff and the defendant had the right to claim the return of the lease deposit amounting to KRW 3,000,000,000 to the plaintiff around August 2012, the plaintiff had the right to claim the return of the ownership amounting to KRW 74,506,190, and the defendant had the deposit amount of KRW 50,000 to the defendant.

[Ground of recognition] Evidence Nos. 4, 13, Eul No. 29, and the court of first instance issued an order to submit documents to Korea Investment Securities Co., Ltd. on July 31, 2014, the purport of the entire pleadings as a whole.

2) Judgment on the Plaintiff’s assertion

A) The Plaintiff asserted that the Defendant’s name was the subject of division of property. However, according to the overall purport of the entries and arguments in the evidence Nos. 4, 25, 29 through 29, the Defendant purchased the above apartment house at KRW 135,000 on January 17, 2013, which was after his separation, with the deposit set forth in paragraph (1) of the same Article, as KRW 50,000,000, 45,000 from financial institutions, and 40,000,000 from financial institutions, respectively, and the remaining 40,000,000 won can be acknowledged as substitute for payment by acquiring the obligation to refund the deposit money, and there is no separate circumstance to recognize that the above apartment house was subject to division as property subject to division.

The plaintiff's above assertion is without merit.

B) The Plaintiff asserts that the Plaintiff should handle the total amount of KRW 336,885,00,000, which the Plaintiff and the Defendant formed during the marriage period, as property subject to division. However, there is no evidence to acknowledge that the Defendant had positive property other than the above amount of KRW 50,000,000 at the time of the marriage failure. Therefore, the above assertion is without merit.

B. Determination

In addition to the facts acknowledged above, comprehensively taking account of the circumstances revealed in the arguments in this case, such as the marriage period of the plaintiff and the defendant, the formation and management of property, etc., the contribution of the plaintiff and the defendant to the property formed during the marriage period seems to be equal.

However, as seen earlier, since the Plaintiff’s net property is more than the Defendant’s net property at the time of the failure of marriage, the Plaintiff’s principal claim seeking a division of property against the Defendant is without merit.

3. Conclusion

Therefore, the main claim of this case is dismissed, and the part of the divorce among the counterclaim of this case is accepted within the scope of recognition, and the remainder is dismissed. Since the part against the plaintiff who ordered the payment of consolation money exceeding the above recognized amount among the counterclaim of the judgment of the court of first instance is unfair, it shall be revoked, and the part of the judgment of the court of first instance shall be dismissed, and the remaining part of the judgment of the court of first instance shall be justified, and the remaining part of

The presiding judge, associate judge

Judges Park Jong-hee

Judges Cho Jae-sung