Whether the provisions of the Civil Act regarding the division of property may apply mutatis mutandis to a de facto marital relationship (affirmative), and in a case where one spouse in a de facto marital relationship bears an obligation accompanying the formation of a common property during a marriage but pays an obligation after the de facto marriage is terminated, whether the obligation repaid becomes the subject of liquidation (affirmative in principle)

Inasmuch as a de facto marriage has an intention to marry between the parties and has an objective substance of marital life that enables them to recognize a marital life under the social concept, the provisions on the premise of a report of marriage in the Civil Act concerning legal divorce may not apply mutatis mutandis. However, the provisions on the division of property with the meaning of the liquidation of marital property are recognized in light of the substance that is the community of the married couple’s living. As a matter of principle, a marital relationship may apply mutatis mutandis to a de facto marriage relationship as a matter of principle, given that a married couple’s obligation to a third party during a marriage is not subject to liquidation as an individual’s obligation, but is an obligation that is borne by the formation of common property. Therefore, if a married couple in a de facto marital relationship bears an obligation accompanied by the formation of common property during a marriage but pays an obligation after

Articles 839-2 and 843 of the Civil Act

Supreme Court Decision 94Meu1379, 1386 delivered on March 10, 1995 (Gong1995Sang, 1612) Supreme Court Decision 97Meu1486, 1493 delivered on February 13, 1998 (Gong198Sang, 767)

Plaintiff (Law Firm Lins, Attorneys Kim Byung-hee et al., Counsel for the plaintiff-appellant)

Defendant 1 (Law Firm Round, Attorneys Kim Shin et al., Counsel for the defendant-appellant)

Defendant 2 (Law Firm Round, Attorneys Kim Shin et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2020Reu10699 Decided December 9, 2020

The part of the judgment below regarding the claim for division of property is reversed, and that part of the case is remanded to Suwon High Court. The Plaintiff’s appeal and the remaining appeals by Defendant 1 are dismissed. The costs of appeal between the Plaintiff and Defendant 2 are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Claim for division of property;

A. Whether the calculation of active property is lawful (the Plaintiff’s grounds of appeal, Defendant 1’s grounds of appeal Nos. 2 and 3)

(1) The lower court determined as follows.

In the attached specifications of the judgment of the court below, in the case of apartment buildings listed in the defendant 1's active property Nos. 3 and 4, Defendant 1 did not acquire ownership at the time of termination of the de facto marriage relationship, the sale right held by the defendant 1 is subject to division.

In the case of Defendant 1’s active property Nos. 1 and above land and above-ground buildings (hereinafter “○○○○○ Real Estate”), it cannot be readily concluded that Defendant 1’s unique property is not the case. Even if Defendant 1’s unique property remains about five years and the de facto marriage period remains about five years, it is reasonable to view that the Plaintiff prevented Defendant 1 from sustaining the decline in the maintenance of real estate through cooperation in light of the circumstances in which the Plaintiff lives in the workplace and Defendant 1’s family members live, etc.

In the case of Defendant 1’s loan claims against the Nonparty, the method of division of property shall be determined by taking account of the relationship between the Plaintiff, Defendant 1 and the Nonparty, etc., and Defendant 1 transferred the loan claims against the Nonparty to

(2) Examining the reasoning of the lower judgment in light of the record, the lower court did not exhaust all necessary deliberations, but did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on special property and property division

B. Whether the computation of small-sized property is lawful (Defendant 1’s ground of appeal No. 1)

(1) Since a de facto marriage has an intention to marry between the parties and has an objective substance of marital life to recognize a marital life under the social concept, the provisions premised on a marriage report among the provisions of the Civil Act concerning legal divorce cannot be applied mutatis mutandis. However, since the division of property with the meaning of liquidation of marital property is recognized in light of the substance of the marital community, it may be applied mutatis mutandis to a de facto marriage relationship (see Supreme Court Decision 94Meu1379, 1386, Mar. 10, 1995). In principle, an obligation borne by one of the married couple to a third party during a marriage is not subject to liquidation as an individual’s obligation, in addition to ordinary family affairs, but it is an obligation borne by the formation of a common property (see Supreme Court Decision 97Meu1486, 1493, Feb. 13, 1998). Therefore, where one spouse in a de facto marital relationship bears a joint property formation, and the obligation is repaid after the completion of a de facto marriage, barring special circumstances.

(2) According to the reasoning of the lower judgment and the record, the following facts are revealed.

The de facto marital relationship between the Plaintiff and Defendant 1 terminated on August 7, 2018, which filed the instant lawsuit by the Plaintiff.

The real estate ○○○○○○○○ owned by Defendant 1 is a property subject to division. As to the real estate ○○○○○○○○○○○○, Defendant 1, in the future of the previous agricultural community, registered the establishment of a mortgage on July 31, 2014 and July 17, 2015, each maximum debt amount of 234,000,000, prior to the termination of de facto marriage.

As of September 28, 2018, Defendant 1 submitted debt certificates (Evidence B 4) with respect to the loan obligations of Nonghyup Bank, which are included in the subject of division of property, including KRW 360,00,000,000 and KRW 1,084,00,000, and the balance of the loan amount of KRW 1,063,190,989. Of them, the loans of KRW 360,000 and KRW 30,000 on August 24, 2018 are two loans of KRW 360,00,000 and KRW 29,910,000 and KRW 1,00 on real estate of ○○○○○○.

On August 24, 2018, 2018, which was established in the Republic of Korea on ○○○○○ real property, two collateral mortgages were cancelled on the ground of termination on August 24, 2018, which was the date of the loan to South Korea. On the same day, Defendant 1 and the maximum debt amount of 507,000,000 were new collateral creation registration.

Defendant 1 argued in the lower court that the obligation to loan to South Korean Won should be subject to division of property because it constitutes a debt arising out of de facto marital relationship.

(3) Examining these facts in light of the legal principles as seen earlier, Defendant 1’s assertion that, during the de facto marriage period, Defendant 1 bears the obligations of Jeonju Agricultural Loan, which is a common property, and, after the de facto marriage relationship was terminated, Defendant 1 bears the obligations of Nam Won Agricultural Loan in order to repay the said obligations, it shall be deemed that the property should be divided in consideration of the repaid obligations. At the time of the termination of the de facto marriage relationship, the lower court should have deliberated on whether Defendant 1 bears the obligations of Jeonju Agricultural Loan, which is accompanied by the formation of ○○○○○ Real Estate, a common property, and determined the obligations subject to division of property.

Nevertheless, the lower court assessed Defendant 1’s property subject to division without examining the timing or cause of the occurrence of the obligation to repay the entire agricultural loan, on the sole basis that the obligation to repay the remaining agricultural loan incurred after the termination of de facto marriage. In so doing, the lower court erred by misapprehending the legal doctrine on property division, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Claiming consolation money;

The Plaintiff and Defendant 1 appealed on the part of the lower judgment’s claim for consolation money, but did not state the grounds of appeal on the petition of appeal or appellate brief.

3. Conclusion

The part of the lower judgment regarding the claim for division of property is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal and the remaining appeals by Defendant 1 are dismissed as it is without merit. The costs of appeal incurred between the Plaintiff and Defendant 2 are assessed against the Plaintiff, who is the losing party. It is so decided

Justices Noh Jeong-hee (Presiding Justice)