(영문) 부산가정법원 2018.8.23.선고 2017드합200439 판결

The plaintiff shall be divorced with the defendant. The defendant shall pay to the plaintiff 20,00,000 won with 15% interest 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 to the plaintiff 267, 942, 466 won as division of property, and 5% interest per annum from the day following the day of confirmation of this judgment to the day of full payment. The defendant shall designate the plaintiff as the person with parental authority and the person with custody of the principal of this case.

Reasons

1. Facts of recognition;

A. On July 7, 2015, the Plaintiff and the Defendant were legally married couple who completed a marriage report, and had the principal of the case under the chain.

B. At the time of marriage, the Plaintiff was a major of a university hospital at the time of marriage with the Plaintiff, and the Defendant retired from his/her workplace in Seoul while married with the Plaintiff, and moved to Busan Maritime Transportation Daegu, which had a new divorce. On November 2015, the Plaintiff was pregnant the principal of the case and did not seek a new work again.

C. From March 2016, the Plaintiff was employed at a hospital located in Gangseo-gu in Busan, and was commuting to his workplace from the new marriage house. The distance was too far far from May 2016, the Plaintiff was a director of the new marriage house as a place of work around the street.

D. On August 5, 2016, the Defendant given birth to the principal of the instant case, and the Plaintiff shared domestic affairs and childcare after his retirement. However, the Defendant gave birth to the Plaintiff under the condition that the health was not recovered after his childbirth, and the Plaintiff was able to give birth to the work day and expressed to the Defendant on his own name, but did not have any communication.

E. The Plaintiff and the Defendant, among themselves, have brought about a dispute around January 2017, and the Plaintiff requested the Defendant to divorce on or around February 3, 2017, and the Plaintiff was living in Ulsan Island until February 4, 2017.

F. Although the Defendant had mistakenly changed the opportunity for the Plaintiff from the time of the above separate occupation, the Plaintiff did not believe the possibility of the change of the Defendant, and filed the instant lawsuit on March 6, 2017.

[Ground of recognition] Each entry of Gap evidence 1 through 5, 15 through 21 (including the number of each office), family investigator's report, mediation action report, and the purport of the whole pleadings

2. Determination as to the claim for divorce

A. Summary of the plaintiff's assertion

The marriage relationship between the Plaintiff and the Defendant was broken down due to the Defendant’s fault, such as the Defendant’s absence of consideration for the Plaintiff, self-centered nature, the need for unilateral sacrifice against the Plaintiff, frequent expressions of complaints and aggressive speech, family negligence, and absence of efforts to maintain the marriage relationship. This constitutes grounds for divorce under Article 840 subparag. 3 and 6 of the Civil Act.

B. Determination

1) Determination as to the assertion of reasons under Article 840 subparag. 3 of the Civil Act

Article 840 Item 3 of the Civil Code provides that "When one of the parties to a marriage is extremely maltreated by his/her spouse, who is a reason for divorce under Article 840 subparagraph 3, "if he/she is extremely maltreated by his/her spouse" means that one of the parties to a marriage has received violence, abuse, or serious insult to the extent that it is deemed that it would be harsh (see Supreme Court Decision 97Meu612 delivered on February 12, 199, etc.).

According to the above evidence and the purport of the whole pleadings, it is true that the defendant tried to consider the defendant during the marriage period that the plaintiff made an effort to give or raise an objection to the plaintiff. However, this is still in a situation where it is difficult for the plaintiff to have the principal of this case in the course of pregnancy, childbirth, and parenting because the defendant has not been married while married, and the defendant has left his place of work and has not been married, so it seems that the plaintiff, who is the husband, was paid an appraisal difficult to the plaintiff. The defendant is an active expression of his own appraisal and desire. On the other hand, the defendant was in the character of the plaintiff, while the plaintiff was in the character of the plaintiff's own appraisal and desire. In light of the fact that the defendant acted as above without considering the characteristics of the plaintiff's nature, the defendant did not request the defendant to divorce, and the defendant was aware of the defendant's mistake and insult, etc., the evidence alone presented by the plaintiff is insufficient to acknowledge that the plaintiff had been forced to continue the marriage period or to be harshly abused during the marriage period.

Therefore, this part of the Plaintiff’s assertion is without merit.

2) Determination as to the assertion of reasons under Article 840 subparag. 6 of the Civil Act

"When there is a serious reason for making it difficult to continue a marriage, which is a reason for divorce prescribed in Article 840 subparagraph 6 of the Civil Act" means the case where a marital relationship corresponding to the essence of a marriage that should be based on difficulties and trust between husband and wife has been broken down to the extent that it is impossible to recover and compelling the continuation of the marital life becomes an unreceptable pain for one spouse. In determining this, the existence of the intention to continue the marriage, the existence of the party's liability for the cause of failure, the period of marital life, the existence of children, the age of the party concerned, the guarantee of livelihood after divorce, and other circumstances of the marital relationship shall be taken into consideration (see Supreme Court Decision 2010Meu140, Jul. 15, 2010).

The following circumstances revealed in full view of the aforementioned evidence and the purport of the entire pleadings are as follows: (a) the defendant wants to keep a family while consistently expressing his/her intent not to have a divorce with the plaintiff at the time when the plaintiff requested a divorce; (b) the defendant appears to have expressed his/her will and unilaterally an appraisal without considering the Plaintiff’s character characteristics in a mental and physically difficult situation; (c) the plaintiff could not have expressed his/her opinion to the plaintiff as much as possible and difficult to think of the divorce during the marriage period; and (d) the fact that the plaintiff did not express his/her intention to recover the relationship after understanding the plaintiff’s mind and endeavor to endeavor in the future; and (e) the defendant expressed his/her will to endeavor to recover the relationship with the plaintiff; and (e) the principal of the case is more than 1 year and 7 months until the time the marriage period of the plaintiff and the defendant was brought into action; and (e) it is difficult to view that all the circumstances of the plaintiff and the defendant, including the marriage and the defendant’s age.

Therefore, the plaintiff's assertion on this part is without merit.

3. Determination as to the claim for consolation money, division of property, person with parental authority and child care.

As long as the plaintiff's claim for divorce is rejected, the claim for consolation money, division of property, parents, and children's claim for designation of a child under the premise of divorce is without merit without any need for further review.

4. Conclusion

Thus, all of the plaintiff's claims of this case are dismissed as it is without merit. It is decided as per Disposition.