2017drid 204298 Consolation Money and division of property

A (1973,000)

2. Address;

Reference domicile

Attorney Lee Do-young

(B) B. (1976 no. 1976)

Address

Place of service

Reference domicile

Attorney Park Jae-hoon

Attorney Lee In-bok

August 23, 2017

September 6, 2017

1. The Plaintiff’s claim for division of property is dismissed.

2. The Defendant: (a) paid consolation money in KRW 30 million to the Plaintiff; and (b) from May 16, 2017 to September 6, 2017, with respect thereto.

It shall pay 5% per annum and 15% per annum from the following day to the day of complete payment.

3. 2/3 of the costs of lawsuit shall be borne by the Plaintiff, 1/3 by the Defendant, respectively.

4. Paragraph 2 can be provisionally executed.

(2) Paragraph (2) of this Article and the defendant shall have a property division of KRW 160 million to the plaintiff, and the plaintiff shall have a property division of KRW 4.8 million

The amount of money shall be paid at the rate of 5% per annum from the day after the day to the day of full payment.

1. Facts of recognition;

A. The plaintiff and the defendant reported their marriage in 2002 and A (the birth of 2003) as their children. The plaintiff and the defendant reported their marriage in 202.

(2) Around February 2014, the Defendant and Byung became aware of the introduction of an elementary school’s windows at an elementary school. On September 3, 2014, the Defendant opened a restaurant, employed Byung as the store of the branch of the sick, and maintained the relationship of the branch of the sick. The Defendant and Byung confirmed the following: (a) the two-day travel day between the branch of the house and the end of May 2015 until the end of October 2015; (b) the Defendant had a sexual relationship several times with the branch of the sick house; (c) Byung was pregnant and received a abortion on June 3, 2015; and (d) on November 3, 2015, the Plaintiff confirmed the Plaintiff’s fraudulent act, pregnancy, and abortion with the Defendant.

(4) On March 10, 2016, the Plaintiff and the Defendant confirmed the intention of divorce by agreement as the court heading 2015 Ma6013, and completed the report of divorce on May 25, 2016. After divorce, the Plaintiff is fostering A, and the Defendant pays the Plaintiff KRW 1 million per month for child support.

B. On September 2, 2013, the Plaintiff and the Defendant purchased the land and housing located in the Sosan-dong, Busan (hereinafter referred to as "IB-dong Housing, etc.") in the name of the Defendant on September 2, 2013. On May 25, 2016, the Defendant entered into a contract to sell the said land and housing KRW 620 million to ** on May 31, 2016, and completed the registration of ownership transfer on May 31, 2016. (2) The Plaintiff and the Defendant entered into a contract on October 31, 2013 on the land and housing located in the Sosan-dong, Busan-dong, Busan (hereinafter referred to as "IB-dong Housing, etc.") in the name of the Defendant, and sold the said housing to 3.5 billion won on the land and housing (hereinafter referred to as "IB-dong Housing, etc.") in the name of the Defendant to 3.6 million won on May 31, 2016.

[Ground of recognition] Evidence Nos. 1 through 8, Evidence No. 10, Evidence No. 10, and evidence No. 1, the whole purport of pleading

2. Determination on the claim of consolation money

A. The defendant's duty to pay consolation money

From February 2014, the Defendant, from around September 2014 to around September 2014, had been employed as an employee of the sick in his/her workplace and had him/her be pregnant at the same time. Such an unlawful act was dismissed from the Plaintiff around November 2015, which led to the failure of the marriage between the Plaintiff and the Defendant, and thus, the Defendant, as the responsible spouse, is obligated to pay consolation money for the marriage dissolution to the Plaintiff.

The Defendant asserts to the effect that, around December 2, 2015, the Plaintiff fulfilled all the obligation to pay consolation money by paying KRW 150 million to the Plaintiff on the same date. As determined in the following paragraph (3), the Defendant is deemed to have paid the said money to the Plaintiff on the same date, but the following circumstances, namely, the Defendant’s assertion to the effect that the division of property has been completed by paying KRW 150 million to the Plaintiff even after the instant lawsuit was filed, that: (a) the Defendant expressed his intention to pay consolation money to the Plaintiff; (b) the Defendant, who is the responsible spouse, owned the Plaintiff; (c) the Defendant offered the method of receiving KRW 200 million from the Plaintiff; and (d) the Plaintiff and the Defendant discussed various measures on the method of division of property; and (e) there was no agreement on the amount of consolation money with KRW 150 million,50,000,000,000 from the Plaintiff; and (e) there was no reason to deem that there was no agreement on the division of property.

B. Amount of consolation money to be paid by the defendant

In light of the method and period of fraudulent act by the defendant and Byung, and the degree of fraudulent act, the plaintiff, who is the spouse, seems to have suffered a very significant mental shock, and the defendant's fraudulent act is a very significant reason for completely lowering the trust of the spouse, and thus, the defendant pointed out the plaintiff's wrong act during the marriage period and left the plaintiff about a considerable portion of his liability for the dissolution of marriage, and thus, the defendant lacks counter-contributation of his fault. The plaintiff's agreement was reached on several months after confirmation of the defendant's fraudulent act, and the agreement was reached on the division of property, and suffered economic loss by making a decision on the division of property rapidly due to mental shock and economic difficulties. The plaintiff's marriage period and the plaintiff's child are raised after divorce, the amount of consolation money to be paid by the defendant to the plaintiff shall be KRW 30 million.

C. Sub-committee

The Defendant is obligated to pay the Plaintiff damages for delay calculated by the rate of 5% per annum under the Civil Act from May 16, 2017 to September 6, 2017, which is the day following the delivery date of the complaint of this case, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination as to the claim for division of property

A. Whether a property division agreement exists

As to the Plaintiff’s claim for division of property, around November 2015, the Defendant agreed to pay the Plaintiff KRW 150 million with consolation money and the division of property at the time of applying for divorce with the Plaintiff. The Defendant asserts that on December 2, 2015, the Plaintiff fulfilled all the obligation to pay consolation money and the division of property by lending money from the form of money to the Plaintiff on December 2, 2015.

According to the purport of Gap evidence 7, Eul evidence 9, Eul evidence 3, and Eul evidence 6 and all the arguments, the defendant agreed on the division of property. The plaintiff owned the plaintiff's houses Nos. 1 and 2, and the plaintiff proposed to pay KRW 200 million to the defendant in installments, and the plaintiff refused to receive KRW 200 million. The plaintiff proposed to dispose of the houses Nos. 1 and 2, etc. after 3 years, and then divided 50% by 50%. However, the plaintiff refused to pay KRW 150,000 to the plaintiff. The plaintiff proposed that the plaintiff shall own the houses Nos. 1 and 2, and the defendant shall immediately pay KRW 150,000 to the plaintiff. The defendant's receipt of such proposal, the defendant lent money from each type of money to the plaintiff on Dec. 2, 2015, and the plaintiff paid KRW 1500,000,000 to the defendant's houses and 2,000,000 won.

The Plaintiff sent letters to the Defendant on September 26, 2016 as a matter of money that the Plaintiff had known that it would be higher, and that the Plaintiff would be paid to A on September 26, 2016. At the time, the Plaintiff had been aware that the Defendant had already disposed of the housing No. 1 and No. 2, etc., the Defendant, May 31, 2016 (the date of the sales contract is May 25, 2016), and the housing No. 2, 00,000,000 on March 29, 2016 (the date of the sales contract is March 26, 2016). It is recognized that the Plaintiff did not demand the Defendant to pay property division, even though having known the Defendant’s disposal of real estate, before the instant lawsuit was filed.

As above, the Plaintiff and the Defendant discussed various methods of division of property before the divorce, and the Plaintiff immediately received KRW 150 million from the Defendant, and the Defendant was one of the methods of division of property discussed by the Defendant. Among the methods of division of property discussed, the Plaintiff was in favor of the Plaintiff (the Plaintiff owned the 1 and 200 million houses, etc., and the Defendant paid KRW 20 million). Among the methods of division of property discussed, there was a method favorable to the Plaintiff (the Plaintiff owned the 1 and 2 houses, etc., and the Defendant paid KRW 50 million), but the Plaintiff selected the method of immediately receiving KRW 150 million from the Defendant. While the Plaintiff knew that the value of the 1 and 2 houses, etc. has increased, the Plaintiff did not fully mention the distribution of profits that the Plaintiff would acquire by disposing of the above houses, etc., and refused to sell the said houses, etc., and even if it did not demand additional payment during the period of disposal of the Defendant’s real property, the Plaintiff and the Defendant did not immediately own the remaining property in its name and paid KRW 15 billion.

Although the market price of housing Nos. 1 and 2, etc. has increased and ultimately became a property division that is considerably unfavorable to the Plaintiff, the increase in the market price of housing, etc. was already known to the Plaintiff at the time of the division of property. The Plaintiff, instead of enjoying the benefit of market price increase, decided to receive KRW 150,000,000 in cash at the party, so it is difficult to deem the Plaintiff as an unfair agreement on the division of property.

B. The legality of division of property

According to Article 839-2 of the Civil Code, one of the parties who has been divorced by agreement may claim a division of property against the other party, and if no agreement is reached or no agreement is possible with respect to the division of property, the Family Court shall, at the request of the parties, determine the amount and method of division in consideration of the amount of the property achieved by mutual cooperation between the parties and other circumstances.

As determined by the above 3-A, since the Plaintiff and the Defendant agreed on the division of property before the divorce, the Plaintiff’s claim for division of property cannot be made to the Family Court, and thus, the Plaintiff’s claim for division of property is unlawful (in addition, the Plaintiff’s claim for division of property is without merit in that the Defendant paid to the Plaintiff both of KRW 150 million following the agreement on division of

4. Conclusion

The plaintiff's claim for division of property is unlawful and dismissed, and the claim for consolation money is accepted for reasons.

Judges Yoon Jae-nam