2011Reu13(principal lawsuit), divorce, division of property, etc.

2011Reu140 (Counterclaim), divorce, division of property, etc.

Article 3

Seoul Nowon-gu

Standard place of registration is 00 00

Attorney Lee Young-young, Counsel for the defendant-appellant

HUD

Seoul Jung-gu

Standard place of registration is 00 00

1. Fents;

2. Fents;

In the same manner as the case principal's address and registration standard support defendant (Counterclaim defendant)

Seoul Family Court Decision 2009Ddan115437, 2010ddan82328 (Counterclaim) Decided February 17, 2011

June 15, 2012

July 20, 2012

1. Of the judgment of the court of first instance, the part claiming consolation money and each counterclaim shall be modified as follows:

A. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 20 million won as consolation money and 5% per annum from September 25, 2010 to February 17, 2011, and 20% per annum from the next day to the day of complete payment.

B. The plaintiff (Counterclaim defendant)'s claim for consolation money and the remainder of the defendant (Counterclaim plaintiff)'s claim for consolation money are dismissed.

C. The Defendant (Counterclaim Plaintiff) shall pay the Plaintiff (Counterclaim Defendant) the amount of KRW 170 million as division of property and the interest rate of KRW 50 million per annum from the day following the day this judgment became final and conclusive to the day of full payment.

(d) Paragraph (a) may be provisionally executed.

2. An appeal on the claim for child support 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 by the Defendant (Counterclaim Plaintiff) respectively.

1. The plaintiff's purport of the claim and appeal

Of the judgment of the first instance court, the part against the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) shall be revoked. The Plaintiff and the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) shall be divorced by the principal suit. The Defendant shall pay to the Plaintiff consolation money at the rate of 50 million won per annum until the day of delivery of the complaint, and 20% per annum from the next day to the day of full payment. The Defendant shall pay to the Plaintiff 448,930,000 won as division of property, and 5% per annum from the day following the day of the final judgment to the day of full payment. The Defendant shall pay to the Plaintiff 448,930,000 won as division of property, and 5% per annum from the day of the final judgment to the day of full payment. The Defendant shall designate the Plaintiff as a person with parental authority and the guardian of the principal of the case. The Defendant shall pay to the Plaintiff one million won as the last day of

2. Purport of the defendant's counterclaim and the purport of incidental appeal

The part of the judgment of the first instance against the defendant shall be revoked. The defendant and the plaintiff shall be divorced by counterclaim.

The plaintiff shall pay to the defendant 50 million won as consolation money with 20% interest per annum from the delivery date of a copy of the counterclaim to the day of complete payment. Division of property is limited to ** Dong****, and the distribution rate is set by plaintiff 20% and 80%.

1. Facts of recognition;

A. The Plaintiff and the Defendant: (a) around February 1991, entered a marriage ceremony and completed a marriage report on June 4, 1993; and (b) entered the instant principal in the marriage. The Plaintiff was the first marriage, and the Defendant was the said marriage.

나. 원고와 피고는 신혼 초부터 피고가 코를 골아 각방을 써왔다. 원고는 신혼 초 전처의 흔적을 발견하고 피고의 여자관계를 의심하거나 주장을 굽히지 않는 경우가 많았다. 피고는 무뚝뚝한 성격인데다 원고와의 다툼을 피하려고 집안에서 점차 말문을 닫게 되었다. 이 때문에 원고와 피고 사이에 진솔한 대화가 점차 어렵게 되었고 원고와 시댁의 관계도 소원하였다.

C. As the principal of the case in 2005 case* became the fourth grade of an elementary school, the defendant started to resist the defendant, and the defendant was able to resist the defendant, and the relation with the principal of the case** without disregarding the principal of the case*, or not paying driving school expenses or money, making verbal abuse later.

D. In around 2009, the case principal body* entered the vocational high school, and the case principal principal body* retired from middle school, while the plaintiff and the defendant transferred their responsibilities to one another, and the conflict has deepened.

E. On April 2007, the Plaintiff got a chest-type surgery. On August 2007, the Plaintiff joined the Internet cromatic music camera and started to neglect the household affairs, and thereafter neglected to do so. From around that time, the Plaintiff continued to increase the balance of the back-to-door loan of the head of the Tong living expenses.

F. At around 10, 2007, the Defendant discontinued sexual intercourse on the ground that the Plaintiff refused key from among the Dos having sexual intercourse with the Plaintiff, and thereafter, did not have sexual intercourse with the Plaintiff.

G. From November 2007, the Plaintiff did not provide laundry or meal to the Defendant, and the relationship between the Defendant and the Defendant did not request the Plaintiff to do so. The Defendant resolved the board and lodging outside of the country, returned home frequently and late at night with the Plaintiff or the principals of the case in an in-depth manner.

H. On December 2007, the Defendant asked the Plaintiff to transfer the hospital expenses of the Defendant father, but the Plaintiff refused to do so. Around January 2008, the Plaintiff would change the password of the monthly salary passbook and directly manage the household, and paid KRW 1.9 million to the Plaintiff in addition to basic expenses, such as public charges and school meal expenses. On February 2008, the Defendant paid KRW 1.4 million to the Plaintiff and paid KRW 1 million a month from March 2008 to March 2008.

I. The conflict between the plaintiff and the defendant was added to the economic problem, and the relationship between the plaintiff and the defendant became worse. On the other hand, the defendant proposed to the plaintiff that he would receive treatment or consultation on the issue of husband and wife or children, but it was not attributable to the plaintiff's refusal

Around 208, the Plaintiff became aware of Non-party Hab* in 2008, and became close to the Plaintiff, and there was a space between giving and receiving money in January 2009 and giving and receiving sexual intercourse at the telecom, and even taking a cell phone in sexual intercourse.

(k) On January 1, 2009, the instant principal discount* The sound in the room, the tear of tear and newspaper was defective, and the Defendant, who was in the dwelling room, was trying to drive away from the dwelling room. The Plaintiff, on the part of the instant principal discount***, and reported to the police by the Plaintiff. The Plaintiff demanded divorce and pro rata property transfer to the Defendant, and the Defendant refused to divorce, but the property may not be said to have been desired by the Plaintiff. The Plaintiff neglected domestic affairs.

T. The Plaintiff, around October 2009, prepared a lawsuit after hardening the idea of divorce with the Defendant and preparing for the lawsuit, withdrawn a total of KRW 31 million from his own account, recorded the conversation with the Defendant, and then filed the instant lawsuit on December 1, 2009.

(m) The Defendant, which had been from March 2010 to June 2010, sought a consultation in the first instance court’s family investigation procedure, and the family investigator also recommended a family treatment approach. However, the Plaintiff’s full refusal to complete the consultation.

n. On August 14, 2010, the Defendant listened to the fact that the videos containing the Plaintiff’s sexual intercourse were disseminated on the Internet, and obtained the video from the Defendant, and the Plaintiff’s act of influence occurred due to the Defendant’s influence, etc., and the marriage with the Defendant was terminated three years prior to the Defendant. Accordingly, the Defendant had pressured or abused the Plaintiff by showing that the instant principal or the Plaintiff’s friendship was influenced within several times, and led the Plaintiff to show that the instant images were influent with the Defendant’s friendship. On September 2010 and September 20, the Plaintiff’s clothes were teared with the Plaintiff’s body as well as the Plaintiff’s body body * the conflict with the Defendant.

(o) On August 20, 2010, the Defendant filed a complaint with the Plaintiff and Hab,* on the charge of inter-compacting sexually related video, and suspended the transfer of the account of living expenses.

D. On September 6, 2010, the conciliation was concluded on the date of the conciliation by the court of first instance, and the Defendant filed the instant counterclaim on September 14, 2010, and the relationship between the original and the Defendant aggravated, thereby disregarding each other or verbal abuse.

(q) The Plaintiff was indicted for a prison charge and sentenced to a two-year suspended sentence on May 11, 201 as Seoul Northern District Court 201Da3014 on November 18, 201, and on December 22, 201, the dismissal of the appeal became final and conclusive around that time, on the other hand, on the grounds that the Plaintiff was aware of the Plaintiff as a divorced woman **

(r) On March 3, 2011, the Plaintiff filed a complaint against the Defendant on charges of assault, intimidation, etc., and the Defendant received a summary order of KRW 1 million as to the detection of the content of the bodily injury, electronic records, etc., damage to property, and violation of the Child Welfare Act by the Seoul Northern District Court Decision 201Da2196, Seoul Northern District Court Decision 20

(s) On October 25, 2011, the Plaintiff and the Defendant agreed to divorce on the date of the first conciliation of the first instance trial, and concluded partial conciliation. According to the order to take measures for conciliation, the Plaintiff and the Defendant consulted with the Jung-gu Healthy Family Support Center from December 2, 201 to February 2012, 201, but did not reach an agreement regarding consolation money and division of property.

[Ground of recognition] Evidence A 1 through 7, Evidence A 11 through 15, Evidence A 20, 25, 30, Evidence A 1 through 6, evidence B 8 through 11, evidence B 13, evidence A 15 through 25, and evidence A 29 (including each number; hereinafter the same shall apply), investigation report by family affairs investigators, investigation report by the court of the first instance,***** securities, bank,** securities, fact inquiry results by bank* the purport of the whole pleadings.

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

A. The parties' assertion

1) The plaintiff's assertion

After marriage, due to the Defendant’s patriarchal thinking method and disregarding and neglecting the Plaintiff, etc., there was almost no conversation or personal exchanges between the Plaintiff and the Defendant, and there was also doubt of the Defendant’s misconduct. Around October 2007, the Defendant’s sexual intercourse was suspended and the conversations and exchanges between the Plaintiff and the Defendant were severed, and around January 2008, the Defendant’s sexual intercourse was changed with the Defendant’s password, and the Defendant’s sexual intercourse was already broken down. The Plaintiff was only 10 thousands or sexual intercourse after the marital relationship was terminated. As the Plaintiff was only 10 millions or sexual intercourse, the primary cause for the failure of the marriage lies with the Defendant. Accordingly, the Defendant is obligated to pay the Plaintiff KRW 50 million and delay damages.

2) The defendant's assertion

Despite the Defendant’s opposition in 2007, the Plaintiff was performing a breast sex surgery, and refused to provide meals and laundry to the Defendant from the end of that year, and refused to provide meals to the Defendant. Around December 2007, the relationship between the Plaintiff and the Defendant becomes worse by refusing a request for transfer of hospital expenses to the Defendant’s father against the Defendant’s father. As the Plaintiff’s marriage becomes completely broken down due to the Plaintiff’s occurrence of the marriage due to the Plaintiff’s delivery of her her her her her her her her her her her her her her her her her her her her hers her her

B. Determination

1) Grounds for failure of marriage

In the event that the marriage of the plaintiff and the defendant caused the breakdown of the family, the plaintiff tried to control the family without any positive effort for the resolution of the conflict and at the cost of living, and the plaintiff revealed the plaintiff's misconduct and thereby, the defendant is also responsible for the conflict in emotional response. However, the plaintiff's failure to make efforts to resolve the conflict is not only refused to provide money and meals to the defendant, but also refused to provide counseling for the recovery of the relationship. More than anything else, even though the plaintiff has committed an illegal act for a considerable period of time and the reputation of the family has been de facto lost due to the video, it is more fundamental and significant responsibility for the plaintiff, such as failure to file a criminal complaint against the defendant.

B. Obligation to pay consolation money

Inasmuch as it is apparent in light of the empirical rule that the Defendant suffered emotional distress due to the failure of a matrimonial relationship between the Plaintiff and the Defendant, the Plaintiff is obligated to pay consolation money in cash. Considering all the circumstances shown in the pleadings of the instant case, such as health class, the Plaintiff and the Defendant’s age, occupation, period of marriage and the circumstance leading up to the failure of marriage, the degree of liability for the failure of marriage, the progress of the instant lawsuit, etc., the amount of consolation money to be paid to the Defendant shall be determined as KRW 20 million.

Therefore, the Plaintiff is obligated to pay as consolation money 20 million won to the Defendant 20 million won and as a result, 5% per annum under the Civil Act from February 17, 201, which is the day following the date of the first instance judgment from February 17, 201, which is the day of the delivery of a counterclaim to the day of full payment, and 20% per annum under the Act on Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination on the claim for division of property in the principal lawsuit

(a) Details of property formation;

1) The Plaintiff and the Defendant began to live in a new apartment ****** apartment *, after that time, they disposed of the apartment house owned by the Defendant before marriage and moved to a broad house of the same apartment ********** apartment * in Ansan-si around 2001. The Plaintiff and the Defendant purchased the above apartment ** Dong*** Dong * Dong** Dong **** *(hereinafter referred to as the “instant apartment *”) after purchasing the apartment * and living together with their families.

2) The Plaintiff was sent to the full-time lecturer. The Defendant, while serving as a part-time lecturer, served as a professor at a university from March 1993, and the present monthly income is about three million won.

3) Around 1985, the Defendant received the registration of transfer of ownership from the Defendant’s husband in Ischeon-si Yacheon-si Y*** 1184 square meters prior to 1184 square meters*************** 82m2 (hereinafter referred to as “instant land”). Thereafter, the Defendant’s parents resided in the neighboring land and left agricultural houses in the vicinity, and the Defendant leased part of them to another person, and received KRW 4 million per annum.

4) The Plaintiff withdrawn KRW 31,759,906 in total from his account from October 5, 2009 to October 19, 2009, when the instant lawsuit was imminent.

5) Around January 2008, the Defendant began to manage the password of the monthly salary passbook and transferred KRW 1.9 million per month to the Plaintiff in addition to the basic expenses, such as public charges, but paid KRW 1.5 million per month from March 2008. After the instant lawsuit was filed, the Defendant suspended the payment after transferring KRW 500,000,000 per month, which was after the filing of the instant lawsuit, and paid KRW 1 million per month on December 201 and January 201.

6) The Defendant received interim settlement of KRW 32.6 million on May 8, 2009.

7) The loan balance of a marina passbook used by the Plaintiff for the cost of living is KRW 10 million.

[Grounds for Recognition] Gap 4, 16, 17, 18, 29, Eul 4, 12, 14, and 15, family investigation report, family investigation report, this court****** bank,** securities, results of fact inquiry, results of appraisal commission, the whole purport of arguments against banks

(b) Property to be divided and its value;

1) For the following reasons, the property and value to be divided are as described in paragraph 5(5):

2) The Plaintiff asserts that the land in this case should be included in the property division subject to division, and thus, the land in this case was completed by the Defendant’s father around 1985, but even after that, in light of the fact that the Defendant’s parents living in the neighboring parents and directly used and profit-making from the land in this case, etc., even if the registration on the land in this case was completed in the name of the Defendant, it is difficult to view it as the Defendant’s positive property, and thus, it is difficult to view it as the subject of the property division. The Plaintiff also asserted that the Plaintiff had been the Defendant’s parents until 2007 after marriage. However, there is no evidence to acknowledge it.

3) 31,759,906 won, which the Plaintiff withdrawn at around October 2009, and 32,600,000 won, which the Defendant received at around April 2009, for interim settlement of accounts around May 200, as well as 32,60,000 won, shall be excluded from assets subject to division, on the grounds that there is no evidence to deem that each of the above amounts is currently in existence until now.

4) The Plaintiff asserted that, since 2008, the Defendant did not pay the living expenses properly, the Plaintiff’s lending money to her friends, such as Eurcare, to raise the living expenses amounting to KRW 30 million, but there is no evidence to acknowledge it.

(v)property subject to division;

A) The Plaintiff: Bank Maspbook (*************) obligation 10 million.

B) Defendant: The instant apartment (the market price of KRW 330 million)

C) Total amount: KRW 320 million (= KRW 330 million - KRW 10 million)

(c) The ratio and method of division of property;

1) Property division ratio

In full view of the following circumstances: (a) during the period of marriage, the Plaintiff collected money in exclusive charge of household affairs and childcare before the Defendant is appointed as professor, and took out funds, etc.; (b) the Plaintiff must raise the principal of the case in the future; (c) the Plaintiff possesses the instant land outside the Defendant’s name; and (d) the circumstances leading up to the acquisition of the property subject to division of property; (b) the details leading up to the formation and maintenance thereof; (c) the degree of the Plaintiff and the Defendant’s contribution to the formation and maintenance thereof; (d) the age, occupation, income level; (e) the process and period of marital life; and (e) the developments leading up to the failure of marriage, it is reasonable to determine the division ratio

2) Method of division of property

Taking into account all the circumstances revealed in the instant pleadings, such as the type of property division, ownership, and use status, and the parties’ intent, it is reasonable to divide the property to be divided into the original and the Defendant according to the currently owned names, but to divide the difference to the extent that the amount ultimately falls short of the amount to be reverted to the Plaintiff according to the ratio of the division of property.

3) According to the above method, the division of property that the Defendant shall pay to the Plaintiff according to the division of property is KRW 170,000,000 as indicated below.

【Calculation Form】

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

x50% = 160 million won in total of net property of the plaintiff and the defendant 320 million won = 160 million won

(2) Amount computed by deducting the Plaintiff’s property possession amount from the above paragraph (1)

10 million won - (- 10 million won) = 170 million won

D. Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 170 million won as division of property and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after this judgment becomes final and conclusive to the day of full payment.

4. Determination as to a claim for designation of a person with parental authority and a custodian, and a claim for child support

The court's reasoning for this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the reasoning is accepted in accordance with Article 12 of the Family Litigation Act and Article 420 of the Civil Procedure Act.

5. Conclusion

Therefore, the defendant's counterclaim consolation money claim is accepted within the scope of the above recognition, and the remainder of counterclaim consolation money claim and the plaintiff's claim for consolation money against the plaintiff is dismissed without merit. Each claim for division of property of the principal lawsuit and counterclaim, the claim for designation of a person with parental authority and a custodian of the principal lawsuit, and the claim for child support are determined as above. Since the principal lawsuit and counterclaim in the judgment of the court of first instance are unfair with different conclusions, they are modified as above, and the plaintiff's appeal for child support claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, assistant judge and assistant judge

Effect of judge appointment;

Judges Kim Gin-jin