2006dwards 18658 Divorce, Division of Property, etc.

High ○ (1941 Life)

이■■ ( 1934년생 )

April 26, 2007

May 31, 2007

1. The plaintiff and the defendant are divorced.

2. The defendant shall pay consolation money to the plaintiff KRW 40,00,000, and it shall be from March 29, 2006 to May 2007.

31. By up to the date of full payment, 5% per annum and 20% per annum from the following day to the date of full payment.

3. The plaintiff's remaining claim for consolation money is dismissed.

4. The defendant shall pay to the plaintiff 12,00,000 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

5. Of the costs of lawsuit, 60% of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant.

6. Paragraph 2 can be provisionally executed.

Paragraph (1) of this case. The defendant shall pay consolation money to the plaintiff 50,000,000 won and the copies of the complaint of this case

From the date following this service to the date of pronouncement, 5% per annum and from the following day to the date of full payment;

20% of the 20% of the 20% of the 208,410,000 of the division of property to the Plaintiff; and

To this end, 20% interest rate per annum from the day following the day this judgment became final to the day of full payment.

H. D. Payment

1. Determination on divorce and the claim of consolation money

(a) Facts of recognition;

The following facts may be acknowledged based on Gap evidence 1, Gap evidence 2-1, Eul evidence 2-2, Gap evidence 4-1, 2-5-1, 5-2, Gap evidence 6-2, Eul evidence 8-1, 2, Eul evidence 8-2, Eul evidence 10-1, 2-2, Eul evidence 10-1, 10-2, family affairs investigator's investigation report, witness's testimony at △△△△△△△△, and the overall purport of the pleadings.

( 1 ) 원고와 피고는 1969. 5. 14. 혼인신고를 마친 법률상 부부로서 그 사이에 성년자녀로 소외 이▲▲, 이△△, 이◎◎을 두고 있다 . ( 2 ) 피고는 둘째 아들인 위 이△△이 초등학교에 다닐 무렵 택시운전 중 교통사고를 내어 구속되었다가 집행유예의 형을 선고받고 석방되었으나, 집행유예기간 중 다시 교통사고를 내어 1년 동안 교도소에서 복역하게 되었다. 그러한 과정에서 경제적 어려움에 처하게 되자, 원고는 막노동을 하여 자녀들을 양육하는 등 가계를 돌보았고, 네 번째 자녀가 출생하자 경제적 어려움으로 인하여 해외입양을 보내기도 하였다 . ( 3 ) 피고는 출소 후 택시운전을 하였는데, 그 무렵부터 원고와 피고는 경제적인 문제로 자주 싸우게 되었고, 그 과정에서 피고는 가족들과 함께 식사를 하면서 밥상을 엎거나 원고를 폭행하기도 하였으며, 1981년경에는 원고를 집에서 쫓아내기도 하였다 . ( 4 ) 피고는 1986. 9. 1. 개인택시 면허를 취득한 후 1986. 9. 4. 할부로 택시를 구입하여 개인택시 운전을 하였는데, 원고와 피고는 피고가 생활비를 제대로 지급하지 않는다는 이유로 자주 다투었고, 원고는 피고가 자신을 폭행하기도 하자, 피고와의 불화를 참지 못하고 1987. 9. 경 집을 나갔다 . ( 5 ) 원고는 집을 나간 후 신내림을 받아 무속인으로서 현재까지 생활하고 있고, 피고도 원고가 집을 나간 때로부터 몇 개월 후 자녀들을 두고 집을 나가 택시 손님으로 만나게 된 소외 이와 동거하기 시작하였다 .

(6) The Plaintiff started to live together with his children since 1998, while coming to the home and going to the home where only his children reside.

한편, 피고는 1988. 2. 경 위 이△△이 복무하고 있는 부대로 위 이 와 함께 면회를 가거나, 위 이소 및 위 이◎◎과 함께 여행을 하기도 하였다. 또한 위 이△△이 2005. 4. 1. 동거하던 소외 문▼와 결혼식을 하게 되자 위 이△△에게 만약 원고한테 연락할 경우 자신은 결혼식에 참석하지 않겠다고 하여 위 이△△으로 하여금 결혼사실을 원고에게 연락하지 못하도록 하였고, 실제로 결혼식에 위 이 를 위 이△△의 어머니인양 참석시키기도 하였다 .

B. Determination

(1) Determination on the claim for divorce

In addition to the above facts of recognition that the plaintiff and the defendant have been separated from around September 1987 to about 20 years and there is no particular exchange, and that the defendant also wanting to divorce with the plaintiff, the marriage between the plaintiff and the defendant has been broken down to the extent that they cannot be recovered.

Furthermore, as to the cause of the failure of the marriage between the Plaintiff and the Defendant, the Plaintiff did not take part in the extinguishment of the marriage with the Defendant and did not make any effort to recover the marriage until now since around September 1987. However, even when the Plaintiff and the Defendant did not make efforts to understand the suffering of the Plaintiff who had taken care of their children and tending to take care of their children through a stop labor, even in the circumstances where the Defendant is detained by a traffic accident, etc., and assaulted the Plaintiff without any effort to recover the marriage with the Plaintiff, and did not look at the Plaintiff’s home without any effort to take part in the marriage with the Plaintiff, and did not look at the Plaintiff’s home while living together with the Plaintiff, and even if the relationship with the Plaintiff was not adjusted, the Plaintiff did not take part in the marriage with the Plaintiff, and did not take part in the marriage of the above △△△△△△, etc., and did so to the Defendant.

The above mistake of the defendant constitutes grounds for divorce under Article 840 subparag. 1, 2, and 6 of the Civil Act, and thus, the plaintiff's claim for divorce of this case is justified.

(2) Determination on the claim for consolation money

Since it is clear in light of the empirical rule that the plaintiff suffered a considerable mental suffering due to the failure of the marriage due to the above defendant's responsibility, the defendant is obligated to pay consolation money for mental suffering to the plaintiff. Considering all circumstances revealed in the arguments of this case, such as the plaintiff's age, the process of marital life, the period of continuance thereof, the circumstances leading up to the failure of the marriage, the circumstance leading up to the failure of the marriage, especially the defendant's house living together with his child from the time when the plaintiff was at home to the time when the plaintiff was at home, and the family living together with the above plaintiff, the amount of consolation money shall be set at 40 million won.

(3) Judgment on the defendant's assertion

The defendant neglected to pay a family due to economic difficulties, such as lending money to the plaintiff due to the plaintiff's non-speed, and having the defendant repaid several times due to excessive damages. Since the marriage relationship between the plaintiff and the defendant led to the failure due to the plaintiff's whole mistake, the plaintiff's failure to respond to the plaintiff's claim for consolation money, so it is difficult to believe that each of the items of subparagraphs 1, 2, and 3 through 7-1, and 2 of the items of subparagraphs 1, 3 through 7, and the statement of the defendant in the report of family affairs investigator is insufficient to recognize it, and there is no other evidence to prove that the marriage between the plaintiff and the defendant was broken due to the plaintiff's mistake, the above argument by the defendant is rejected.

In addition, the defendant asserts that the plaintiff's claim for divorce and consolation money of this case has already been filed after the expiration of the statutory period and the limitation period under Articles 766, 841, and 842 of the Civil Code, so it cannot respond to the plaintiff's claim. However, as long as the defendant is living together with the above person until now, it cannot be deemed that the plaintiff's claim for divorce and consolation money has expired due to the expiration of the period, the defendant's claim cannot be accepted.

C. Sub-decision

Therefore, the plaintiff is divorced from the defendant, and the defendant is obligated to pay to the plaintiff the consolation money of 40,000,000 won and the damages for delay at each rate of 20% per annum as stipulated in the Civil Act from March 29, 2006 to May 31, 2007, which is the day following the day when the copy of the complaint of this case was served on the defendant, to the day when the defendant delivered the copy of the complaint of this case to the defendant.

2. Determination on the claim for division of property

(a) Facts of recognition;

The following facts may be acknowledged based on Gap evidence 3, Eul evidence 7, Eul evidence 9, Eul evidence 10-1, 2, Eul evidence 11-2, Eul evidence 12, 13, Eul evidence 14-1, 2, Eul evidence 15-1, 2, 15-2, and Eul evidence 16, the investigation report of family affairs investigator's investigation report, the fact that the market price was commissioned to the due appraiser's office of this court, and the whole purport of arguments. (1) The defendant acquired a private taxi driver's license on September 10, 1986, which requires the experience of driving without accidents, and began to purchase a private taxi on September 4, 1986 and started to operate a private taxi on June 4, 198, and the defendant has purchased a private taxi on June 4, 200, and had been operating a private taxi on six occasions.

24. SM (M) purchased 520 taxis, and the current market price of the defendant's personal taxi license including the above taxi is 60,000,000 won.

(2) From around 1953 to 1953, the Defendant’s mother and family members lived without permission on the ground of Seongbuk-dong Seoul, Seongbuk-gu, 543 - 80 large scale 56 square meters (hereinafter “road-dong land”), and Nonparty 1, the Defendant’s living together, purchased the road-dong land around 1968 in around 1968. After that, on July 6, 1981, Nonparty 1 acquired the building located in Gangnam-gu, Seoul, Seoul, and became two houses for one household, and transferred the name of the road-dong land on July 18, 1981 to the Defendant, and as of March 8, 2007, the market price of the Dong-dong real estate was KRW 305,005,00,000,000.

( 3 ) 원고와 피고는 길음동 부동산에 거주한 사실이 없는 반면, 피고의 동생인 소외 이★★이 피고의 어머니를 모시고 길음동 부동산에 거주하다가 피고의 어머니가 위 이☆☆와 함께 살게 된 이후 위 이★★ 이 길음동 부동산에 거주하면서 피고를 대리하여 길음동 부동산에 대한 임대차계약을 체결하는 등 길음동 부동산을 관리하고 있고, 위 이☆☆는 길음동 부동산의 재산세를 2000년경까지 직접 납부하기도 하였다 . ( 4 ) 원고는 피고, 위 이☆☆의 동의 없이 1982년경부터 3차례에 걸쳐 길음동 부동산의 임차인으로부터 임대차보증금을 100만 원씩 올려 받아 이를 소비하기도 하였다 .

B. Parties’ assertion

The plaintiff asserts that since the plaintiff contributed to raising his children and taking care of his household, the defendant's personal taxi driver's license is subject to division of property of this case. The defendant's personal taxi driver's license is subject to division of property of this case, since the defendant was faced with economic difficulties, such as binding on the defendant, the above land was donated to the defendant, and since the plaintiff maintained and maintained the roadsidedong real estate for 6 years, it is also subject to division of property of this case.

In this regard, the defendant acquired a private taxi license through the defendant's efforts, and maintained a license by purchasing a new taxi on several occasions up to now, so the defendant's private taxi license cannot be subject to division of property in this case, and the private taxi license in this case was substantially entrusted to the defendant to avoid heavy taxation on two houses per household owned by the above-mentioned father, so the private taxi license in this case cannot be subject to division of property in this case.

C. Determination

(1) First, in light of the fact that the defendant's personal taxi license was examined on the defendant's personal taxi license, the private taxi license was issued to a person who satisfies the accidentless period of time, and the plaintiff maintained a marital relationship with the defendant for not less than 17 years from the time when the defendant acquired his personal taxi license after completing the marriage report with the defendant on May 14, 1969, and that the defendant brought up his children and took care of his household, it is reasonable to deem that the plaintiff directly and indirectly contributed to the defendant's acquisition of his personal taxi license by domestic labor, etc., and therefore, it is reasonable to deem that the amount equivalent to the market price of the defendant'

( 2 ) 다음으로, 길음동 부동산에 대하여 살피건대, 위 인정사실에 원고는 길음동 부동산을 일컬어 ' 시댁 ' 이라고 칭하는 점, 원고는 길음동 부동산의 세금을 누가 납부하였는지에 대하여 알지 못하고 있는 점, 원고와 피고는 길음동 부동산에 전혀 거주한 적이 없고, 현재까지 피고의 동생이 거주하면서 이를 관리하고 있는 점 등을 종합하여 보면 길음동 부동산은 실질적으로 위 이☆☆의 소유로서 피고에게 명의신탁된 것이라고 봄이 상당하므로 길음동 부동산은 이 사건 재산분할의 대상이 된다고 할 수 없다 . ( 3 ) 결국 피고의 개인택시면허의 시가상당액만이 이 사건 재산분할의 대상이 된다 .

However, the Plaintiff and the Defendant did not have any exchange at all since September 1987, and the Defendant maintained a private taxi license while continuing to purchase and operate a new taxi on several occasions up to the present date; while the market price of the Defendant’s private taxi license includes the value of the above taxi itself, the Plaintiff’s contribution to the acquisition of the Defendant’s private taxi license exceeds 20% and the Defendant pays the Plaintiff the division of property at 12,00,000 won (60,000,000 x 20%) out of the market price of the private taxi license to the extent that the Plaintiff’s contribution to the acquisition of the Defendant’s private taxi license exceeds 20%.

D. Sub-determination

Therefore, the defendant is obligated to pay the plaintiff 12,00,000 won as division of property and damages for delay at the rate of 5% per annum from the day after this judgment becomes final and conclusive to the day after full payment is made.

3. Conclusion

Therefore, the plaintiff's claim for divorce of this case and the claim for consolation money within the above recognized scope are justified, and the remaining claim for consolation money is dismissed as it is without merit, and it is so decided as per Disposition with regard to the claim for division of property.

Judges Kim Young-hun