[1] Whether division of property following a divorce may be made by including the nature as a payment for compensation for mental damage (defensive materials) (affirmative)

[2] Requirements for division of property following divorce to be subject to revocation by obligee as a fraudulent act, the scope of revocation, and the burden of proof (=creditor)

[3] The case holding that the excess portion is subject to creditor's right of revocation because the division of property due to divorce exceeds a considerable degree

[1] Article 839-2 of the Civil Act / [2] Articles 406 and 839-2 of the Civil Act / [3] Articles 406 and 839-2 of the Civil Act

[1] Supreme Court Decision 200Da27084 Delivered on October 10, 2000, Supreme Court Decision 2000Da58804 Delivered on May 8, 2001 (Gong2001Ha, 1344) Supreme Court Decision 2004Da58963 Delivered on January 28, 2005 (Gong2005Sang, 398) / [2] Supreme Court Decision 2000Da14101 Delivered on July 28, 200 (Gong200Ha, 1940) Supreme Court Decision 200Da25569 Delivered on September 29, 200 (Gong200Ha, 200Ha, 207)

Plaintiff

Defendant (Attorney Im-soo et al., Counsel for defendant-appellant)

Jeonju District Court Decision 2004Na608 delivered on November 10, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In the division of property following divorce, the liquidation elements of the property formed during marriage and the support elements after divorce may be included in the division to compensate for mental damage (defensive materials) (see Supreme Court Decisions 2000Da27084, Oct. 10, 200; 2000Da58804, May 8, 2001; 2004Da58963, Jan. 28, 2005; 2004Da58963, Jan. 28, 2005, etc.). Thus, in this case, it cannot be said that the lower court erred by taking into account the fact that the amount of the Defendant’s reasonable division of property may include consolation money and support allowances in the division of property.

On a different premise, we cannot accept the appeal pointing out the judgment of the court below.

2. Regarding ground of appeal No. 2

A. The division of property at the time of divorce is so excessive that it may not be deemed reasonable in violation of the purport of Article 839-2(2) of the Civil Act, and the division of property is not subject to the creditor’s right of revocation as a fraudulent act, barring any special circumstances to the contrary, barring such special circumstances as above, the scope of revocation shall be limited to the portion exceeding the reasonable portion, and the burden of proving that there are special circumstances to deem that the division of property at the time of divorce is excessive division beyond the considerable degree is the creditor (see Supreme Court Decisions 200Da14101, Jul. 28, 200; 200Da25569, Sept. 29, 200).

According to the reasoning of the judgment below, the court below held that the division of property in this case was subject to creditor's right of revocation on the premise that there are special circumstances to deem that the division of property in this case is excessive division of property beyond a considerable degree, and that the non-party, who is the pre-nam of the defendant, was not insolvent due to the division of property in this case, and that the division of property in this case was judged to be subject to creditor's right of revocation on the premise that the non-party, who is the pre-nam of the defendant

Meanwhile, according to the records, the non-party's division of property of this case is determined to have exceeded his/her obligation. The non-party's claim for retirement pension was also 1/2 at the time of the agreement on division of property. However, according to Article 246 (1) 4 of the Civil Execution Act, the non-party's active property is not 65,651,830 won converted into retirement pension (the reasonable conversion amount is 66,067,250 won or above 60,000 won and 1/2050 x 2050,000 won x 3050,000 won, 205,000 won x 205,000 won, 205,000 won x 1/605,000 won, 205,000 won x 305,000 won, 205% of the total amount of property of this case since the non-party's claim for damages against the non-party.

B. All the circumstances revealed in the reasoning of the judgment below and the records. In particular, in light of the fact that the defendant married with the non-party and the non-party, the non-party is a public official living together with the non-party, raises his children other than household affairs, raise his children, and the non-party prepared the entire real estate in this case, and contributed to the formation of the property with agricultural profits, and the division of property may include consolation money and support fees, etc., it is reasonable to view that the court below has a right to claim a division of property as to 1/2 of the total value of the entire real estate of this case and the retirement pension claims with the non-party. Furthermore, since the plaintiff excluded the land (3rd address omitted) of the whole real estate of this case transferred by the defendant from the object of revocation of fraudulent act, the defendant properly transferred only the remaining real estate except the above 4/5 portion of the remaining real estate at the time of Kim Jong-si (3rd address omitted), and the transfer of ownership over this portion of the above real estate to the non-party shall be subject to the creditor's's right of revocation.

In addition, the defendant, when calculating the non-party's lump sum of retirement benefits under the Public Officials Pension Act, was 141,280,111 won, which was recognized by the court below as illegal. However, the defendant stated that if the non-party receives retirement benefits in a lump sum on the date of the closing of argument in the court below, the amount would be 140,000,000 won including retirement allowances, and that the amount would be 140,000,000 won (Records 568,000 won) was the person who paid retirement benefits. However, the court below found the non-party's lump sum of retirement benefits to be 37,35,220 won, and retirement allowances to be 36,57,530 won, while the court below found the amount of retirement benefits to be 140,000,000 won less the aggregate of the above lump sum of retirement benefits and retirement allowances from 666,067,250 won,830 won or 8305 won.

Furthermore, according to the reasoning of the judgment below, the court below erred by misapprehending the legal principles as to whether the division of property in this case exceeded a considerable degree and its scope, and it cannot be found that the defendant was transferred to the division of property in this case, but the plaintiff did not suffer double deduction of the value of the land in Kim Jong-si (detailed address omitted) that was excluded from the revocation. Therefore,

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)