2019u21648 Divorce, etc.

2019u21655 (Counterclaims), divorce, etc.

A

Section B.

C

Busan Family Court Decision 2019ddan203053 (Main Office), 2019d April 30, 2019

Provided, That the judgment 205042 (Counterclaim)

December 23, 2020

January 20, 2021

1. Of the instant counterclaim, the part concerning the claim for designation of a person with parental authority or a custodian and the claim for child support shall be dismissed. The part concerning the claim for division of property in the judgment of the first instance court shall be modified as follows

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) 60 million won as division of property and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The defendant (Counterclaim plaintiff)'s remaining appeal is dismissed.

4. The total costs of the lawsuit shall be borne by each person in combination with the principal lawsuit and the counterclaim.

1. Purport of claim

A. Main Action: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced by the principal action. The defendant shall pay the plaintiff 20 million won as consolation money and the amount of 12% per annum from the day following the service date of the complaint of this case until the day of this judgment, to the day of complete payment. The defendant shall pay 95,780,99 won as division of property, and 5% per annum from the day following the day of this judgment to the day of full payment. The plaintiff shall be designated as the person with parental authority and the guardian of the principal of this case. The defendant shall pay 2.5 million won as the child support of the principal of this case to the plaintiff. The defendant shall pay 1 million won per month from September 2019 to the day before the principal of this case reaches the age of majority (the part of this case's claim was excluded from the scope of this court's designation and withdrawal of the child support of this case).

B. Counterclaim: The defendant and the plaintiff shall be divorced by a counterclaim. The plaintiff shall pay to the defendant a solatium amounting to 20 million won with 15% interest per annum from the day following the delivery of the counterclaim of this case to the day of full payment. The defendant shall be designated as a person with parental authority and the guardian of the principal of this case. The plaintiff shall pay to the defendant 50 million won per month from the day following the delivery of the counterclaim of this case to the day when the principal of this case reaches the majority.

2. Purport of appeal

The part concerning the claim for division of property in the principal lawsuit of the court of first instance is modified as follows. The defendant shall pay to the plaintiff 33 million won as division of property and 5% interest per annum from the day following the day on which the judgment became final to the day of full payment. The part concerning the claim for designation of the principal lawsuit of the court of first instance as well as the person having parental authority and the person having parental authority and the person having custody over the counterclaim, and the part concerning the claim for child support shall be changed as follows. The plaintiff shall designate the defendant as the person having parental authority and the person having custody over the principal of the case. The plaintiff shall pay 50,000 won per month from the day following the delivery of the counterclaim to the day on which the principal of the case reaches the majority (the part concerning the claim for divorce and consolation money in the judgment of the court of first instance, excluding the part concerning the claim for divorce and consolation money in the judgment

1. Determination ex officio as to the designation of a person with parental authority and a custodian for the principal of the case, and the claim for child support among counterclaims

The principal of the case has reached the majority as of February 11, 2001, and it is apparent that it reached the age of majority as of the date of this judgment. Therefore, the part of the counterclaim person and custodian designation for the principal of the case, and the claim for child support is unlawful.

2. The judgment on the merits and the counterclaim shall be deemed to be combined.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report on 1998, and have one of the principal of the case and one of the adult children under the chain.

B. The Plaintiff was dissatisfied with the Defendant’s family head and authoritative attitude and negligence in home, and the Defendant made efforts for home while working abroad, but the Defendant’s health has deteriorated and did not have interest. The Defendant made verbal abuse and assault against the Plaintiff and its children.

D. The Plaintiff and the Defendant opened and operated an agency with money created by the Defendant’s return of retirement allowances and lease deposit, but became a business failure and became a business failure, resulting in economic difficulties.

E. The Plaintiff and the Defendant were discharged from the Defendant on March 14, 2019, which led to the Plaintiff and the Defendant’s dismissal thereafter.

[Ground of recognition] Evidence Nos. 1 through 8, Evidence Nos. 1 through 26, and the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money

A. Determination on the principal lawsuit and counterclaim divorce claim: on the grounds of Article 840, Article 840, Article 3 and 6 of the Civil Code, the judgment on the principal lawsuit and counterclaim consolation money claim is without merit.

【Reasons for Determination】

○○ marriage failure: The marriage relationship between the Plaintiff and the Defendant has reached a failure in full view of the following: (a) the Plaintiff and the Defendant did not make efforts to recover the relationship for a long time, and (b) the Plaintiff and the Defendant agreed to divorce.

The principal liability for the failure of the marriage : The plaintiff and the defendant have failed to resolve the conflict situation that may arise during the marriage period, and their relationship has deteriorated, and thus, the liability for failure of the marriage ended equally with the plaintiff and the defendant. Therefore, the plaintiff's claim for consolation money in the principal lawsuit and the defendant's counterclaim claim for consolation money in the counterclaim of the defendant are without merit.

(a) Property and value to be divided;

1) Property subject to division: The property subject to division of property and the value thereof shall be determined based on the date of closing argument in this case (Provided, That in cases where consumption or concealment is easy as money and where there is a risk of overlapping amounts if the base point of time differs, it shall be presumed that the marital relationship has reached the failure as the principal date of the lawsuit in this case on March 14, 2019, and it shall be determined the object and value of division by presumption that the amount has reached the failure of marriage as the principal date of lawsuit in this case. However, if the Plaintiff and the Defendant make a statement by agreement

(ii) the value of the property to be divided;

A) Plaintiff’s net property: 13,370,926 won

B) Defendant’s net property: 148,532,924 won

C) Total amount of net property of the Plaintiff and the Defendant: 161,903,850 won

3) Ratio and method of division of property

A) Division ratio: Plaintiff 45%, Defendant 55%

[Grounds for determination] The grounds for determination shall be determined in light of the circumstance of the formation and maintenance of the common property of the Plaintiff and the Defendant, the period of marriage, the form of marital life, age, occupation and economic

B) Method of division of property: considering the parties’ intentions, the ownership, acquisition, and maintenance of the property subject to division, and the circumstances indicated in the instant pleadings, such as the ownership, the process of the acquisition and maintenance of the property subject to division, it is determined that the Defendant pays to the Plaintiff the insufficient portion of the amount to be reverted to the Plaintiff according to the above division ratio.

C) Property division amount to be paid by the Defendant to the Plaintiff: KRW 60 million, which shows a little amount of the following calculation results:

[Calculation Form] 59,485,806 won (i.e., KRW 161,903,850 x 45% - 13,370,926 won, and approximately KRW 4) Sub-committee theory

Therefore, the defendant is obligated to pay to the plaintiff the amount of 60 million won as division of property and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day immediately after this judgment becomes final and conclusive to the day of full payment.

3. Additional determination

A. The Defendant asserts that, due to the shortage of living expenses, the above borrowed KRW 29 million from May 14, 2012 to July 12, 2013 should be included in a small-sized property subject to division, as the Defendant borrowed from each type of imprisonment to July 12, 2013.

According to the statements in Eul evidence 9 through 11 (including paper numbers), it may be acknowledged that each loan certificate was prepared from the bank account in the name of the defendant on May 14, 2012, the amount of KRW 10 million on August 28, 2012, the amount of KRW 10 million on July 12, 2013, the amount of KRW 10 million was withdrawn on July 14, 2013, the Defendant borrowed KRW 19 million on May 14, 2012, and August 28, 2012, and the amount of KRW 20 million on July 12, 2013, the evidence presented by the defendant on July 201, 201 to 300,000 won on July 19, 201, and the following facts can not be found to have been established by the defendant on July 24, 201.

Therefore, the defendant's above assertion is without merit.

B. The Defendant asserts that the Plaintiff’s claim for the refund of the lease deposit should be included in the property subject to division, but the evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff has the claim for the refund of the lease deposit, and there is no other evidence to prove otherwise, the Defendant’s assertion also is without merit. The Defendant asserts that, after the instant lawsuit, the Plaintiff leased C Officetel at KRW 2 million, and that the Plaintiff paid KRW 1.5 million out of the deposit amount to the money previously owned by the Plaintiff, the amount of KRW 1.5 million should be actively included in the Plaintiff’s property.

According to the statement No. 9-1 of this Court, the results of the Financial Transaction Information Meeting as of June 24, 2020, and the purport of the whole pleadings, it can be recognized that the Plaintiff’s bank account transferred KRW 1.4 million from April 27, 2019 to April 7, 2019, KRW 7.330,000 to the Plaintiff’s bank account, respectively, and that the Plaintiff transferred KRW 1.5 million to the C Officetel lessor on April 30, 2019. Thus, the Plaintiff’s money appears to have been paid KRW 1.5 million to the Plaintiff’s money. Since the money of the Plaintiff’s account was already reflected in the Plaintiff’s active property No. 1 of the attached Form No. 1, the Plaintiff’s active property cannot be separately recognized as the Plaintiff’s active property.

Therefore, the defendant's above assertion is not accepted.

4. Conclusion

Therefore, the part of the claim for designation of a person with parental authority and a person with custody among the counterclaims of this case is unlawful, and thus, the part of the claim for division of property in the judgment of the court of first instance regarding the claim for division of property in the judgment of the court of first instance is modified as prescribed in the

The presiding judge shall be appointed from among the judges;

Judge Muma decoration

Judges Dognaia

A person shall be appointed.

A person shall be appointed.