2017drid204021 (principal action) Nullity of marriage

2018Ddan207874 (Counterclaim) Nullity of marriage

Section B.

June 21, 2018

July 19, 2018

1. The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) are divorced by the principal lawsuit.

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

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) by adding the principal lawsuit and the counterclaim to 1/4. The remainder is assessed against the Defendant (Counterclaim Plaintiff).

In the principal lawsuit, it is confirmed that the marriage reported to the head of Busan Metropolitan City on October 2, 2015 between the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) is null and void. The Defendant pays to the Plaintiff a solatium amounting to KRW 50 million with 15% per annum from the day following the day of delivery of a copy of the complaint of this case to the day of complete payment. The Defendant shall pay to the Plaintiff the amount calculated at the rate of KRW 50 million per annum from the day of delivery of a copy of the complaint of this case to the day of full payment. This is set forth in the Disposition 1.

Counterclaim: The defendant and the plaintiff shall be divorced. The plaintiff shall pay to the defendant 30 million won as consolation money, and the plaintiff shall pay 15% interest per annum from the day following the day of service of a copy of the counterclaim of this case to the day of complete payment. The plaintiff shall pay 200 million won as division of property and the amount equivalent to 5% interest per annum from the day following the day of confirmation of the judgment of this case to the day of full payment.

1. Facts of recognition;

A. A. A person suffering from cerebrovascular disease, who was married with A and B on December 1, 1999 after being dead in 198, but became aware of the Defendant, who was employed as a healthy food sales telecom around 201 in 2011 while being married with consultation on September 7, 2010. The Plaintiff demanded the Defendant to move into the Plaintiff’s house to live and live together with the Plaintiff, and the Defendant was living together with the Plaintiff from May 2012.

B. Meanwhile, on April 27, 2010, the Defendant got a judicial divorce due to an economic problem between C and C, and had two children of full age 00, full age 00 between C and C.

C. On August 10, 2012, the Plaintiff’s children did not want to marry any longer between the Plaintiff and B, and on the other hand, on August 10, 2012, the Plaintiff drafted and provided a written pledge to pay KRW 300 million (10 million shall be paid at the end of October of the same year, and the remainder of KRW 200 million shall be paid by attorney’s notarial deed) in lieu of a marriage report, and confirmed that the Plaintiff’s children promised to purchase an apartment within the limit of KRW 230,000,000 within the period of July 17, 2014 and provided a written pledge.

D. The Plaintiff: (a) deposited the Plaintiff’s account with one’s passbook and credit card, etc. with one’s own account; (b) deposited KRW 30 million from the Plaintiff’s account to one’s own account; and (c) deposited KRW 290,81,80 from around that time to October 13, 2016 (including the amount including KRW 50,000 relating to the land of the following subsection (e)) with one’s own account, and transferred KRW 70,000,000,000 for one’s own account, and KRW 70,000,000,000 for KRW 70,000,000 (see each of the evidence No. 4-1,2, A14,155, and KRW 700,000,000 for KRW 84,704,700,000 for the Plaintiff’s credit card account separately; and (d) deposited KRW 700,7004,0000.

E. On July 2013, the Defendant purchased shares in the land at port via Kim00, one’s own private village, and received KRW 50 million from the Plaintiff as above (see the evidence No. 4-1, No. 11).

F. Meanwhile, the Plaintiff and the Defendant filed a marriage report on October 2, 2015, while the Plaintiff’s children were unaware of, on September 6, 2016. On September 6, 2016, the Plaintiff prepared a testament to the effect that the Defendant, the wife, and the second son, who were the Plaintiff’s wife, may inherit the building and the site located in Busan High-gu, Busan High-gu, as the Plaintiff’s main revenue source to the Defendant and the second son, and deliver, to the Defendant, with the authentication.

G. The Defendant, from April 2016, was a director of an officetel near the Plaintiff and the Defendant’s residence due to health problems. However, the said officetel was residing in the Defendant, and the Defendant had son in Jeonnam and the said officetel, and was in custody of the Plaintiff’s house, a certified copy of the resident registration card of Jeonnam and the name card, and a self-examination report on July 7, 2016. The Defendant did not move to the Plaintiff’s address and maintained the resident registration card at the same address as Jeonnam.

H. Around October 12, 2016, around October 12, 2016, the Plaintiff and the Defendant known that they reported their marriage to the Plaintiff’s children was married to the Defendant, and the Defendant was arrested by the Defendant, and forced the Defendant to enter into the relationship with the Jeonnam, etc., and the Defendant went out of the Plaintiff’s house on October 13, 2016.

[Ground of recognition] Gap evidence 1 to 15 (including numbers; hereinafter the same shall apply), Eul evidence 1 to 4, video, and the purport of the whole pleadings

2. Judgment as to the plaintiff's main claim

A. The plaintiff's assertion

Since the Defendant, from the beginning, was married with the Plaintiff as a means to obtain property without the intention of marriage, the marriage between the Plaintiff and the Defendant is null and void when there is no agreement between the parties to the marriage. Since the Plaintiff suffered mental pain due to the above acts of the Defendant, the Defendant is obliged to pay the Plaintiff a consolation money in KRW 50 million to the Plaintiff.

B. Determination

Under our legal system that takes the principle of legal divorce established by a marriage report, once a report of marriage is made through legitimate procedures, the marriage is presumed to be valid as it is in accordance with the agreement of marriage between the parties, and thus, the presumption should be followed by the person who asserts the nullity of the marriage based on sufficient evidence that can be accepted by anyone.

With respect to the instant case, it is recognized that the Plaintiff and the Defendant were registered as having reported the instant marriage between the Plaintiff and the Defendant. Furthermore, with respect to whether the instant marriage report was made without the intention of marriage between the Plaintiff and the Defendant, the Health Unit, according to the above recognition facts, the Defendant used considerable money while living together with the Plaintiff or remitted money to himself/herself and his/her family; the Defendant was given a promise to donate property or inherit several times from the Plaintiff; and the fact that he/she was brought back to South and North Korea from around 2016, even though it is recognized that such circumstance and the evidence submitted by the Plaintiff alone were insufficient to recognize that the Defendant reported the marriage without the intent of marriage prior to the report of marriage, and there is no other evidence to prove otherwise.

Therefore, the principal claim based on the plaintiff's nullity of marriage is without merit.

3. Judgment on the plaintiff's preliminary principal lawsuit and the defendant's counterclaim

A. The parties’ assertion

1) The Plaintiff asserts that the marriage relationship between the Plaintiff and the Defendant caused the failure of marriage due to the Defendant’s prior causes, such as using the Plaintiff’s deposit and credit card for the Defendant and the son, the son and the son convenience, and the son convenience.

2) The Defendant asserts that the Plaintiff and the Defendant’s children, who became aware of the fact that they reached the marriage report, unilaterally drive away the Defendant, led to the failure of the marriage, and sought a divorce from the Plaintiff and the Defendant as a counterclaim to pay a solatium of KRW 30 million.

B. Determination

1) According to the above facts of recognition, the Plaintiff and the Defendant have been so far since October 13, 2016, and both the Plaintiff and the Defendant have filed a divorce with the principal lawsuit and the counterclaim. Thus, the marriage relationship between the Plaintiff and the Defendant has been no longer reached to the extent that they can no longer recover.

Furthermore, even though the marriage between the plaintiff and the defendant caused the failure of marriage, they are married with the plaintiff and continue to have a sony who prepared the plaintiff's place of residence in the vicinity of the plaintiff's place of residence, and they are mainly responsible for the defendant who used the plaintiff's property for the whole b and children.

2) Therefore, the Defendant’s above mistake constitutes a cause for judicial divorce under Article 840 subparag. 1 and 6 of the Civil Act, and thus, the Plaintiff’s conjunctive divorce claim based on such cause is reasonable, and the Defendant’s claim for divorce and solatium claim are without merit.

4. Determination on the claim for division of property

A. The defendant's assertion

The Defendant maintained a marital relationship for five years including the Plaintiff and the de facto marriage, and fulfilled the duty of living together and supporting, and the Plaintiff currently holds land, buildings, and various financial assets, etc. equivalent to the market price of two billion won. Therefore, the Plaintiff is obligated to pay the Defendant the amount of two billion won as a division of property.

B. Determination

According to the above facts, it appears that the plaintiff paid 300 million won to the defendant instead of filing a report on marriage with the defendant, and that the plaintiff and the defendant agreed to provide apartment buildings. However, the plaintiff and the defendant eventually reported marriage. The defendant received 100 million won as the purchase price of the current 50 million won and 880 million won from the plaintiff during the living together with the plaintiff and married with the plaintiff, including 50 million won as the purchase price of the current 10 million won received from the plaintiff during the period of marriage with the plaintiff, and transferred 84,700,000 won from the plaintiff's account to her her her her her her her her her she and her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her's her her her her her's her her's her her's her.

5. Conclusion

If so, the plaintiff's conjunctive divorce claim is justified, and the plaintiff's main claim and the defendant's counterclaim are all dismissed. It is so decided as per Disposition.

Judges Cho Sung-sung