2017dwards 213865 (Divorce) Damage (Divorce)

2018dern 206178 (Counterclaim) Compensation (term)

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

August 22, 2018

September 5, 2018

1. The plaintiff (Counterclaim defendant)'s principal claim and the defendant (Counterclaim plaintiff)'s counterclaim claim are all dismissed.

2. Of the costs of lawsuit, the part resulting from the principal lawsuit is borne by the Plaintiff (Counterclaim Defendant) and the part resulting from the counterclaim is borne by the Defendant (Counterclaim Plaintiff).

In this lawsuit: Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) B and Defendant C jointly pay 30 million won to Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) and 15% interest per annum from the day following the delivery of the complaint of this case until the day of full payment.

Counterclaim: The plaintiff shall pay to the defendant B 5 million won with 15% interest per annum from the day following the delivery of the counterclaim of this case to the day of the pronouncement of this judgment, and 15% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The Plaintiff and Defendant B lived from around April 2012, and reported marriage on September 11, 2012.

B. On July 2012, Defendant B became aware of the fact that he had a child between the Plaintiff and the former wife, and unlike the Plaintiff’s horse that he took place without having contact with the former wife and his child on December 2013, Defendant B had been in fact in a business cooperative relationship with the former wife and became aware of the fact that he continued to contact with his child.

C. On October 3, 2015, the Plaintiff started the business of installing air conditioners independently from the company. Defendant B, while attempting to engage in the apartment sale agency business with Defendant B (Defendant C, Defendant C, etc.) with intent to engage in the original act, there was a lot of time to immediately return to the police for reasons, such as a frying, making soup and making soup. For this reason, the Plaintiff was aware of Defendant B’s external appearance, and on October 3, 2015, the Plaintiff reported to the police by avoiding the Plaintiff who attempted to assault Defendant B’s incidental goods and reported it to the police.

D. Around October 2015, the Plaintiff agreed to go at the house to Defendant B. On or around the end, around November 2015, the Plaintiff left the house by making the slaughter, such as home appliances, etc. Around the end of November, 2015. Defendant B terminated the slaughter on November 1, 2015, and remitted KRW 70,000 to the Plaintiff on November 18, 2015. Around the end of November 2015, the Plaintiff returned the benz vehicle to the Plaintiff at the Plaintiff’s request.

E. The Plaintiff sent text messages to Defendant B, who is able to enter the office on the day preceding the date of the director’s directors, “I am confused by arranging the mind, send the word “,” and after the director, “I do not need to do so because there is an attorney-at-law.” The Plaintiff sent text messages to Defendant B, who is able to arrange in writing.

F. The Plaintiff and Defendant B, who was the Plaintiff’s director from the end of November, 2015, did not have any particular exchange while departing from the end of the Plaintiff. In response to Defendant B’s request for divorce, the Plaintiff and Defendant B agreed on October 19, 2016.

G. Defendant B, prior to the Plaintiff’s divorce, went abroad to the United Kingdom on April 2016, 2016, and only Defendant C, who was traveling in the United Kingdom on May 2016, together with his family members, was born on March 6, 2017.

H. Around July 2017, Defendant B brought an action of denial of paternity against the Plaintiff to confirm that the new 00 is not the Plaintiff’s father, and the judgment of denial of paternity was rendered on September 5, 2017.

[Ground of recognition] evidence Nos. 1 through 5, Eul evidence Nos. 2 through 4, Eul evidence No. 9, Eul evidence No. 12, and the whole purport of oral argument

2. Determination on the claim of consolation money and counterclaim

A. The parties’ assertion

(1) The plaintiff's assertion

Around October 2015, the Plaintiff came to know of Defendant B’s external appearance, and, upon having a separate living, the Plaintiff thought that Defendant B would be able to arrange the relationship with other males and maintain the same as that of the preliminary marriage. However, on the grounds that Defendant B would be favorable for the issuance of students studying abroad around August 2016, Defendant B made a strong demand for the instant divorce and made a divorce on October 19, 2016. The Plaintiff received a written complaint of denial of paternity brought by Defendant B around July 2017, and came to know that Defendant B was demanding the divorce by concealing the fact of pregnancy and demanding the divorce. Since the marriage between the Plaintiff and Defendant B was broken down due to an unlawful act committed by the Defendants, the Defendants are jointly obligated to pay consolation money of KRW 30 million to the Plaintiff.

(2) Defendant B’s assertion

After the marriage of the Plaintiff, the Plaintiff deceptioned Defendant B, including the previous wife and continuing to meet with the Defendant, and committed violent acts, such as verbal abuse, assault, damage to water, etc., suspected of Defendant B’s external appearance, and did not cooperate with Defendant B’s pregnant efforts, and Defendant B demanded a divorce in advance by carrying on business by doping another woman, and by arranging the house’s property, the marriage relationship was terminated around November 2015. Since the Plaintiff’s marriage was caused by the mistake of the Plaintiff, the Plaintiff is obligated to pay a solatium of KRW 30 million to the Defendant.

(3) The defendants' assertion

Since the Plaintiff and Defendant B’s marriage were extinguished, the Defendants are not obligated to pay the above-mentioned premium to the Plaintiff.

B. Determination

(1) The time when a matrimonial relationship has been broken down

In light of the fact that the Plaintiff: (a) around November 2015, at the end of 2015 when the Plaintiff went into a house, did not make any effort to recover the marital relationship between the Plaintiff and Defendant B, it is recognized that the marriage between the Plaintiff and Defendant B was not terminated at the end of November 2015, in light of the following: (b) the Plaintiff’s suicide, which is the common property of the couple, the distribution of vehicles, deposits, etc., was finished; (c) the Plaintiff arranged his mind to Defendant B; and (d) the Plaintiff sent an expression to the effect that the divorce procedure may proceed through an attorney-at-law; and (e) during the separate period, the Plaintiff and Defendant B did not make any effort to recover the marital relationship.

(2) Whether the Defendants are liable to compensate for damages arising from a tort (unlawful act)

If the husband and wife has not yet divorced but the marital life has yet to be in an unreparable state due to the failure of the marital life, even if the third party commits a sexual act with the husband and wife, it cannot be deemed as an act infringing on or interfering with the maintenance of the marital life. As such, it cannot be said that the damage is caused to the spouse’s right as to the marital life. Thus, it is difficult to deem that a legal act is constituted (see Supreme Court en banc Decision 2011Meu2997, Nov. 20, 2014).

Therefore, in order for the Defendants to be liable for damages against a wrongful act, the Defendants should have committed a wrongful act before the actual failure of the relationship between the Plaintiff and the Defendant B. As such, Defendant B gave birth to his wife on March 6, 2017, it is recognized that the Plaintiff and Defendant B left the Defendant C’s wife at the time of legal divorce with the Plaintiff. However, as to the Defendants’ wrongful act before the end of November 2015 when the marital relationship between the Plaintiff and the Defendant was substantially extinguished, it is insufficient to recognize only the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge it (in light of the study time and pregnancy period in the UK of Defendant C, it is highly likely that the Defendants would have come to have a close relationship only after the end of November 2015). Accordingly, the Plaintiff’s claim for consolation money on the premise that the Defendants had committed a wrongful act prior to the failure of the marriage between the Plaintiff and the Defendant C is without merit.

(3) The spouse of the person liable for the dissolution of marriage.

As determined above, there is no evidence to acknowledge that Defendant C committed an unlawful act prior to the dissolution of a marriage, and according to the facts acknowledged earlier, the conflict between Defendant C and Defendant C due to the Plaintiff’s wife and child problems, such as a conflict arising from late arrival of the Plaintiff and the Plaintiff’s external suspicion, the Plaintiff’s violent act, etc., and the Defendant C was living together, and the property was adjusted and distributed in a way to resolve the conflict, and the Plaintiff was living together, and the Defendant C started to proceed with the scheduled divorce while consenting to the agreement. In other words, since the marriage relationship occurred by the Plaintiff and Defendant C, it is difficult to recognize that the responsibility of either the Plaintiff and the Defendant B for the dissolution of a marriage is more severe.

(4) Sub-decisions

The Defendants are not deemed to have committed an unlawful act prior to the end of November 2015, which is prior to the actual failure of the marriage between the Plaintiff and Defendant B, and the Plaintiff and Defendant B’s liability with respect to the failure of the marriage are deemed to be equal. Therefore, the Plaintiff’s claim for consolation money against the Defendants, and the Plaintiff’s claim for materials against the Plaintiff on the premise that the marriage was extinguished due to the Plaintiff’s failure of the marriage due to Defendant B’s negligence and the Defendants’ wrongful act, and the Plaintiff’s claim for materials against the Plaintiff on the premise that the marriage was

3. Conclusion

The plaintiff's main claim against the defendants and the counterclaim against the plaintiff by the defendant B are all groundless, and they are dismissed.

Judges Yoon Jae-nam