(영문) 서울가정법원 2013.9.12.선고 2012드합9003 판결

4. The defendant shall pay to the plaintiff 169,00,000 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. The plaintiff shall be designated as a person with parental authority and custodian of the principal of the case.

6. The defendant, as the plaintiff,

A. Payment of KRW 7,80,000 shall be made for the past child support of the principal of the case. B. Payment of KRW 600,000 each month from September 1, 2013 to October 20, 2015 shall be made on the last day of each month as the child support of the principal of the case.

7. A. The defendant may freely communicate the principal of the case according to his will until the principal of the case becomes adult.

B. The plaintiff must actively cooperate with the defendant in exercising the visitation right to the principal of the case.

8. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

9.Paragraphs 2 and 6 may be provisionally executed.

Purport of claim

[1] Paragraphs (1) and (5) of this Article and the defendant shall pay consolation money to the plaintiff 50,000,000 won and this money to the plaintiff.

shall pay 20% interest per annum from the day after the delivery of a copy of the complaint to the day of full payment.

D. The Defendant’s property division amounting to 300,000,000 won and the date the judgment of this case became final and conclusive against the Plaintiff.

D. The defendant shall pay to the plaintiff 5% interest per annum from the next day to the day of full payment.

When the principal of this case is adult from the day after a duplicate of complaint was served with the child support of the principal of this case.

By the end of each month the 700,000 Won per month shall be payable at the end of each month.

Reasons

1. Determination on the claim for divorce and consolation money

A. The facts of recognition (1) marriage and children: the marriage report on March 31, 192; the child between the plaintiff and the defendant and one male and female, including D (192 birth) and the minor principal of the case, an adult as the child between the plaintiff and the defendant; (2) the defendant, at the time of marriage, was living in a workplace at the time of the marriage; (3) around 1993, was in charge of domestic affairs and childcare; and (2) the plaintiff was in charge of the defendant's father on March 5, 1994; and (3) the defendant was inherited the Yongsan-gu Housing Site and building (2) in Yongsan-gu, Seoul, which was located at the time of the above third party's marriage (hereinafter referred to as "E real estate after combining each of the above real estate").

(C) The Plaintiff and the Defendant from around 2003 to 2003, and their mother (the Defendant was diagnosed with dementia around 201)

A. The Defendant’s mother has frequently caused disturbance with the Plaintiff and her children, and the Plaintiff, which caused conflicts between the Plaintiff and the Defendant, even though the Defendant voluntarily resisted that “the Defendant cannot live with her mother,” but the Defendant did not take any particular measure. Moreover, the Defendant’s her mother was allowed to inherit the instant property solely on the premise that the Defendant’s mother is mother, and the Plaintiff’s mother is not well aware of the Defendant’s mother, and thus, the conflict between the Plaintiff and the Defendant surrounding the issue of support for the Defendant’s mother was created.

(D) Around February 2011, the Defendant’s mother was living together with the Defendant at the Defendant’s mother’s bar or house in accordance with the agreement between the Plaintiff and the Defendant, and the Defendant’s mother was living together with the Plaintiff on April 201, 201, on the following grounds: (a) around 1999, the period of the steel cutting business commenced at the Silified Corporation; (b) around 2006, the steel cutting business commenced; (c) the principal of the instant case was required to major in the instant principal’s education expenses; and (d) the Plaintiff, who was under the instant principal’s study, was living together with the Plaintiff; and (e) around February 201, the Defendant’s mother was living together with the Defendant’s mother; and (d) the Defendant was discussed with the Plaintiff on the issue that the mother was working again at around April 201; and (d) the Plaintiff and the Defendant had his refusal to do so.

(F) The Plaintiff and the Defendant discussed the divorce at around June 201, and in the process, the agreement was made in preparation of a divorce report.

(3) The period of separate residence and the present state (A) of the defendant (A) going to leave around April 201, and the plaintiff and the defendant are about two years and five months, respectively. (b) The defendant coming to a separate dwelling and going to a separate dwelling, and the plaintiff is raising the principal of the case while living in the previous dwelling.

(C) From May 9, 2013, the instant lawsuit rendered a prior disposition order ordering the Defendant to pay KRW 600,000 per month to the Plaintiff with the instant principal’s child support from May 9, 2013 to the completion of the first instance trial procedure, the Defendant did not perform the said prior disposition order and did not pay the instant principal’s child support at all.

[Ground of recognition] Evidence Nos. 1 through 5, investigation report by family affairs investigators, purpose of the whole pleadings

B. Determination

(1) A claim for divorce: A claim for consolation money on the grounds of Article 840 subparagraph 6 of the Civil Code; (2) A claim for consolation money shall be accepted within the scope of KRW 10 million and delay damages.

[Ground of determination] (A) The Plaintiff and the Defendant’s failure of marriage: The period of separate marriage between the Plaintiff and the Defendant reached two years and five months, and the Defendant also sought to resolve the marriage relationship with respect to the Plaintiff’s request for divorce by asserting that the division of property has already been completed, compared to the Plaintiff’s responsibility: (b) the Defendant’s responsibility for the failure of marriage has been able to reach a conflict due to the Plaintiff’s mother’s support and economic issues; (c) the Plaintiff and the Defendant suffered from dementia in 2011; and (d) the Plaintiff suffered from dementia (the dementia was diagnosed in 201, but it was presumed that there was a symptoms of dementia before it was caused by the disease), despite having a lot of difficulties, the Defendant did not share its roles with or recognize the labor properly, and thus, caused the Plaintiff’s failure of the marriage by criticizeing the Plaintiff’s failure of marriage without sharing its roles with the Plaintiff or recognizing the labor.

(C) The amount of consolation money: The defendant is liable for the failure in the marriage as seen above to the plaintiff's liability. Thus, the defendant is obligated to pay consolation money to the plaintiff for mental suffering caused by the failure in the marriage relationship. The amount of consolation money shall be determined as KRW 10 million in consideration of the circumstances surrounding the failure in the marriage as seen earlier and various circumstances such as the plaintiff and the defendant's age, career, and duration of the marriage.

C. Sub-committee

Therefore, the plaintiff is divorced from the defendant, and the defendant is liable for consolation money of KRW 10 million to the plaintiff, and the defendant is liable for consolation money of KRW 10 million to the plaintiff and a copy of the complaint of this case from August 10, 2012 to the date following the delivery of a copy of the complaint of this case.

12. up to the day, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment shall be liable to pay damages for delay calculated.

2. Determination as to the claim for division of property

A. Judgment on the Defendant’s main defense

The Defendant, around July 201, concluded a property division agreement on the premise of divorce between the Plaintiff and the Plaintiff. Accordingly, since the Defendant transferred the Plaintiff’s ownership of G Apartment 104 Dong 102 and 102 in Seoul Yangcheon-gu, the Plaintiff’s separate claim for property division is unlawful. However, the Defendant’s claim for property division is not sufficient to recognize that the Defendant made a property division agreement on the premise of divorce between the Plaintiff and the Plaintiff, and there is no other evidence. Furthermore, even if the Plaintiff and the Defendant made a property division agreement on the premise of divorce between the Plaintiff and the Defendant on the premise of the divorce, the agreement remains in effect only for the case where the agreement between the Plaintiff and the Defendant was reached after the agreement, or where the agreement remains in effect without divorce or a divorce is made by one of the parties’ lawsuit of divorce, such agreement does not take effect due to the non-performance of the condition (see Supreme Court Decision 2001Da14061, Aug. 19, 203).

B. During the process of property formation (1) the Defendant, at the time of marriage, was performing a work at H’s “H”, and was operated after the Defendant’s parent’s retirement at around 1993, left the place of work, and left the place of sprinking with the Defendant’s parent. In around 1999, the Defendant began the steel sprinking business at the Silified Corporation (2006) after the Defendant’s retirement of sprinking, and continued to run the sprinking business.

(2) The Plaintiff retired from work after marriage, while taking charge of domestic affairs and childcare while having been in full-time care. At the home, the Plaintiff sold clothes to the neighboring people, and went on to the living expenses. (3) The Defendant’s father died on March 5, 1994, and his spouse and children (two of the Defendant and the Defendant’s children), but the Defendant was inherited real estate E by himself.

Before his father’s death, the Defendant (around July 201, 2006) leased E real estate to another person (the rental deposit is KRW 30,000,000). The Defendant received from the lessee the rent for E real estate and appropriated it for living expenses. After the Plaintiff and the Defendant were dead on April 201, the Defendant changed from July 201 to the Plaintiff’s direct lessee’s rent.

Meanwhile, from around 2004 to 2010, the Defendant used E real estate as collateral and borrowed a total of KRW 200 million from the Nonghyup Bank as collateral.

(4) Around 2004, the Defendant purchased the ownership of G Apartment No. 104 and 102 (hereinafter “instant apartment”) located in Yangcheon-gu Seoul, Yangcheon-gu. On July 22, 2011, the Defendant donated the instant apartment to the Plaintiff on July 2, 201. At the time of donation, four collateral security was established in the first bank (the maximum debt amount of each of the instant apartment was KRW 2.45 million, and the Defendant was the obligor; the obligor was the Defendant). After the donation of the said apartment, the Plaintiff repaid all of the collateral security loans to the foreign exchange bank and cancelled the registration of each of the above collateral security loans, and the remainder was used as living expenses and education expenses of the principal of the instant apartment loan. The Plaintiff obtained the instant apartment savings from the Hyundai Bank as collateral and appropriated the instant amount of KRW 800,000,000,000,000 from the foreign exchange bank.

(c) Property and value to be divided (1) (a) The value of the property to be divided (a) the Plaintiff’s net property: 12,737,954 (b) the Defendant’s net property: 595,629,54 won (c) the total amount of the Defendant’s net property: 608,367,49 won;

[Ground of recognition] Eul evidence Nos. 1, Eul evidence Nos. 2-1, 2-2, Eul evidence Nos. 6-1, 2-2, this Court's Nonghyup Bank, the NH Bank of this Court's order to submit financial transaction information to foreign exchange banks, and the results of this Court's entrustment to appraiser I of this Court's appraisal, investigation report by domestic affairs investigators, and the purport of the whole pleadings

D. Determination of the parties' assertion on the property subject to subdivision (1) Plaintiff's assertion

The plaintiff asserts that among the defendant's small property, the secured loan obligations against the Nonghyup Bank shall include only KRW 100 million in the property subject to division, and the remaining KRW 100 million in the property subject to division shall not be included in the property subject to division because it is consumed for the defendant's personal purpose. However, the above secured loan obligations of the defendant are all incurred at the time when the plaintiff and the defendant living together, and they are borne with the formation and maintenance of the common property of the plaintiff and the defendant. The defendant consumed KRW 100,000 out of the above secured loan for the personal purpose only by the Financial Transaction Order Association for the

The plaintiff's above assertion is without merit, and there is no other evidence to acknowledge it.

(2) The Defendant’s assertion (A) that the apartment house in this case was provided as security by the foreign exchange bank under the name of the Plaintiff, Hyundai Savings Bank, and the Defendant used a large amount of secured loan funds for personal purposes. Thus, each of the above secured loan obligations should not be included in the property subject to division. However, as seen above, the Plaintiff appears to have appropriated the above secured loan for living expenses and the child support of the principal of this case (the Defendant did not pay the principal of this case only once, and the principal of this case is in the public book required for a large amount of education expenses). The Defendant’s assertion is not acceptable because there is no evidence to regard the Plaintiff as having borne the above secured loan obligations for personal purposes. (b) The Defendant’s assertion that the real estate under the name of the Plaintiff was provided as security by his father, and the E real estate should not be included in the property subject to division, which was acquired by his father’s inheritance, and thus, the Defendant’s joint property division and the E-property division system should not be established for the purpose of property division under the Civil Act.

In other words, the defendant again agreed to return the inheritance portion of E to the mother who is co-inheritors and she, and therefore only 2/9 shares, which are one's own shares of E real estate, should be included in the property subject to division of this case. However, although the defendant's sole ownership of E real estate is as seen above, it is insufficient to view that part of the shares of E real estate in the above real estate was not owned by the defendant, and there is no other evidence to acknowledge it, it should be included in the property subject to division of this case. Therefore, the defendant's above assertion is without merit. (C) The defendant's assertion that the defendant's non-CF credit card loan obligation in the name of the defendant should also be included in the property subject to division of this case. However, since there is no evidence to acknowledge that the defendant had borne the above debt with the formation and maintenance of common property during marital life, the defendant's assertion cannot be accepted.

E. Ratio and method of division of property (1) : Plaintiff 30%, Defendant 70%

[Based on the above determination, E’s real estate having a considerable portion of the career and income of the Plaintiff and the Defendant during the marriage life of the Plaintiff and the Defendant, and the property acquired by the Defendant during the division of property of the instant case is the property acquired by inheritance; the process, duration and details of the marriage of the Plaintiff and the Defendant, the age and occupation of the Plaintiff and the Defendant; and the method of division of property (2) division: The property under the name of the Plaintiff and the Defendant, the ownership of which should be determined according to the division of property is determined by the Defendant’s payment to the Plaintiff

(3) Property division amount to be paid by the Defendant to the Plaintiff: KRW 169,00,000

[Calculation Form] (A) The Plaintiff’s share of net property of the Plaintiff and Defendant according to the division ratio of property

Net property 608, 367, 499 x 30% x 182, 510, 249 x 182, 510 x 249 b) Difference between the money referred to in the above (a) and the difference between the Plaintiff’s net property - KRW 182, 510, 249 - 12, 737, 954 = 169, 772, 295 c)

169,00,000 Won 169,000,000 for a little amount under subsection (b) above

F. Sub-committee

Therefore, the defendant is liable to pay the plaintiff 169,00,000 won as division of property and damages for delay calculated by the rate of 5% per annum from the day following the day when this judgment becomes final and conclusive to the day of complete payment.

3. Determination as to a claim for designation of a person with parental authority or a custodian, claim for child support, and visitation right (ex officio)

(a) Person with parental authority and custodian: Designating a plaintiff;

[Ground of determination] Various circumstances such as the Plaintiff’s living together with the principal of the case during the separate period of stay, the age and gender of the principal of the case, and the Defendant’s consent to the designation of the principal of the case as the person in parental authority and the person in custody of the principal of the case

B. Child support (1) in the past: A total of 7.8 million won in the 600,000 won in August 9, 2012, which is the date of delivery of a copy of the complaint in the instant case, from August 9, 2012 to August 13, 2013, which is the month immediately preceding the month to which the date this decision is rendered, falls ( = 13 months x 600,00 won) future child support: Future child support from September 1, 2013 to the day before the principal in the instant case becomes adult.

60,000 won per month shall be paid on the last day of each month.

[Ground of determination] As seen earlier, the economic condition after division of property between the Plaintiff and the Defendant, age and degree of education of the principal of the case, experience and occupation of the Plaintiff and the Defendant, and other various circumstances are considered. The visitation right (ex officio determination) has the right to interview with the principal of the case as long as it does not go against the welfare of the principal of the case. Considering all the circumstances revealed in the arguments of the case, such as the age, parenting status of the principal of the case, and the degree of contact with the principal of the case, determination of visitation right is reasonable for the emotional stability and welfare of the principal of the case. The Plaintiff must actively cooperate in the exercise of the visitation right to the principal of the case.

4. Conclusion

Therefore, the plaintiff's claim for divorce is accepted on the grounds of the above recognition, and the remaining claim for consolation money is dismissed on the grounds of the above recognition. It is so decided as per Disposition with regard to the claim for division of property, the claim for designation of a person with parental authority and a custodian, the claim for child support, and the visitation right (ex officio judgment).