In a case where the defendant living together with the plaintiff for about 28 years while maintaining a legal relationship with his wife at the same time, the case rejecting the plaintiff's claim for consolation money and division of property due to the resolution of de facto marriage on the ground that his living together by the plaintiff and the defendant is merely in an overlapping relationship and not a de

The case rejecting the plaintiff's claim for compensation and division of property following the resolution of de facto marriage on the ground that it is difficult to see that the plaintiff's living together with the plaintiff was the intention of living as the plaintiff or the defendant, and it is reasonable to see that the plaintiff's living as the plaintiff or the defendant's living together had the intention of living as the plaintiff or the defendant, and at least it is deemed that there was the intention of marriage, even if the plaintiff or the defendant did not have the intention of marriage, it cannot be deemed that there was the intention of marriage, and it is difficult to see that there was the substance of marital life to recognize the marital life between the plaintiff and the defendant, and rather, the living together with the plaintiff and the defendant is one type of overlapping relationship, and the defendant was living together with the plaintiff while maintaining the legal relationship with the wife and at the same time living together with the plaintiff, it is not acceptable in terms of social order and protection equivalent to legal confusion.

Articles 810 and 812 of the Civil Act

Supreme Court Decision 94Meu1638 delivered on September 26, 1995 (Gong1995Ha, 3531) Supreme Court Decision 96Meu530 delivered on September 20, 1996 (Gong1996Ha, 3190) Supreme Court Decision 200Da52943 Delivered on April 13, 2001 (Gong2001Sang, 1129)

Plaintiff (Law Firm Barun Law, Attorneys Kang Jon et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Chang-chul et al., Counsel for defendant-appellant)

February 4, 2004

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 1,00,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment. The defendant shall pay to the plaintiff 3,000,000 won as division of property and 5% interest per annum from the day following the day of full payment of this decision to the day of full payment.

1. Facts of recognition;

The following facts may be acknowledged by comprehensively taking account of the evidence Nos. 1 and 2, evidence Nos. 3-1 through 9, evidence Nos. 4-1 through 6, evidence Nos. 6, 10, 12, evidence Nos. 1 through 3, and evidence Nos. 6, and evidence Nos. 1 through 6, 2, Eul, 8, 10, 11, evidence No. 12-1 through 4 of evidence Nos. 12-1 through 12 of evidence Nos. 12 of the above facts (Provided, That the part which is not believed after the entry of evidence No. 12 of the evidence No. 12), the contents of investigation report of domestic investigation report by domestic investigation officers, and the testimony of Non-Party No. 1 of the witness No. 1 of this case (excluding the part which is not believed after the entry).

A. On May 17, 1967, the Plaintiff filed a marriage report with Nonparty 2, and completed a divorce report on May 15, 1969. After the above divorce report, Nonparty 2 and Nonparty 2 were living together for more than three years, and Nonparty 1 and Nonparty 3 (Defendant 3, 1971) were employed between Nonparty 2 and Nonparty 2.

B. The defendant completed the marriage report on March 4, 1957 with the non-party 4, and between the non-party 5 (the non-party 18, 194), 6 (the plaintiff 25, 1955), 7 (the plaintiff 4, 1957), 8 (the plaintiff 2, 1964), 9 (the plaintiff 1, 1952), 10 (the plaintiff 19, 1959), 11 (the plaintiff 21, 1961).

C. Around 1975, the defendant began to live together with the plaintiff by obtaining a set of money from the plaintiff at Mapo-gu Seoul, and around 1981, the defendant's clothes, photographs, etc. were moved to the house living together with the plaintiff (hereinafter referred to as "the plaintiff house"), and the plaintiff was living together with the plaintiff for more than 3 days a week thereafter, and the defendant's family living together with the defendant's family at the house living together with the defendant's family (hereinafter referred to as "the defendant's family") on the remaining day. The defendant's family thought that the defendant's family living in the hotel operated by the defendant on the day on which the defendant's family does not come to his principal.

D. While continuing the living together with the Plaintiff, the Defendant sent time to the Defendant’s family members as well as the Defendant’s family members on the birth day of life or of the Defendant’s husband and wife, and the Defendant was also present at the Defendant’s home.

E. The Plaintiff, while living together with the Defendant, endeavored to maintain the Defendant’s health, such as giving the Defendant a warning, and gave advice in relation to the Defendant’s hotel business, and was also launding the Defendant’s hotel and the Defendant’s main family directly.

F. The Plaintiff, while living together with the Defendant, thought that the living expenses received from the Defendant are low, was incomprehioned to the Defendant, and the Defendant did not attend the Plaintiff’s home for a certain period each time. Accordingly, the Plaintiff was difficult to seek a letter about the above incomprehion to the Defendant.

G. The Plaintiff, while living together with the Defendant, was pregnant on three occasions during the period of their pregnancy, was born both.

H. The Plaintiff, using the date of birth of the Defendant’s children, and the date of birth of the Defendants’ children, also deemed a private owner. At the time of the marriage of the Defendant’s married, the Plaintiff gifts cosmetics, coffee residues, etc. to the Defendant, but there was no delivery or personnel division with the Defendant’s family members.

I. The plaintiff and the defendant were married in the Chinese restaurant located in Seoul Si around 1996, and at the time the defendant's family and relatives were not present at any time.

(j) From around 200, the Defendant began to be suffering from liver cancer, repeated hospitalization and discharge at a hospital, and then discharged again at a hospital on April 11, 2003. The Defendant ceased living with the Plaintiff around that time, and collected the Defendant’s clothes, household appliances, etc. around July 2003.

(k) On July 15, 2003, the Plaintiff filed the instant lawsuit, and the Defendant’s family members became aware of the Defendant’s living together with the Plaintiff only through the instant lawsuit.

(l) On the other hand, on May 1, 1990, the Defendant purchased a house of 204-29 square meters and 140 square meters and 2-story above ground in the name of the Plaintiff on May 9, 1990 (hereinafter referred to as “each of the above real estate”), and completed the registration of ownership transfer under the name of the Plaintiff on May 9, 199 (B-1, 2, 6-1, 12-1, 3, and 4, the ownership of the above real estate was later transferred to Nonparty 12, 12, and 1, 1, 2003 through Nonparty 1, 1, 2003, 200, 300, 196, 200, 300, 200, 16,000,000 won under the name of the Plaintiff on July 31, 200 (hereinafter referred to as “the above real estate was purchased on May 21, 20195).

(m) The Defendant brought a lawsuit against the Plaintiff on August 14, 2003, Seoul District Court Decision 2003Kahap6029, and filed a criminal complaint against the Plaintiff on September 3, 2003, on the ground that, at the time of purchasing the Plaintiff’s instant lawsuit, the Plaintiff promised to sell Blackdong real estate and pay the amount thereof to the Defendant, and at the time of purchasing the second real estate, the Plaintiff borrowed the amount of KRW 100,000 from the Defendant. The Defendant filed a lawsuit against the Plaintiff on August 14, 2003, as Seoul District Court Decision 2003Da60629, and the Plaintiff filed a criminal complaint against the Defendant on September 3, 2003, for fraud, etc.

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that the plaintiff has maintained a de facto marriage for a long time, and that since the defendant unilaterally reversed the above de facto marriage without justifiable grounds, consolation money and division of property should be paid from the defendant.

In this regard, the defendant asserts that the living together of the plaintiff and the defendant is in a overlap relationship, not a de facto marriage, so it cannot respond to the plaintiff's request.

(b) Markets:

In order to establish a de facto marriage, a public health unit and a de facto marriage have the intention to marry between the parties subjectively, and there should be an substance of a marital life that can recognize a marital life in terms of family order objectively in light of social norms (see Supreme Court Decision 2000Da52943, Apr. 13, 2001, etc.).

Therefore, with respect to whether there was an intention to marry between the plaintiff and the defendant, the health unit, and the intention to marry refers to the intention to enjoy a community life as a couple socially and practically. The existence of an intention to marry between the parties means that there exists an agreement between the parties. Although the plaintiff living together with the defendant for about twenty-eight years, he has made many efforts to maintain the defendant's health, he was found to have worked late, but the defendant remains at the plaintiff's house for three days per week, and the remaining day was living with the non-party 4 at the defendant's home, the defendant sent time to the defendant's name or the birth day of the defendant's family, and it is difficult to see that the defendant did not introduce the plaintiff at least once to the defendant's children, and it is difficult to see that there was no intention to marry between the plaintiff and the defendant, and that there was no intention to marry and the defendant's family member living together with the defendant for eight years, taking full account of the circumstances that the defendant did not complete the marital relationship with the plaintiff's family member or the defendant's mother.

In addition, considering the above various circumstances, it is difficult to see that there was a substance of marital life among the plaintiff and the defendant, and rather, the living together of the plaintiff and the defendant is one type of overlapping relationship. Furthermore, since the defendant has been living together with the plaintiff while maintaining the legal relationship with the non-party 4 at the same time, the living together of the plaintiff and the defendant cannot be accepted in terms of social order and social order, and therefore, protection equivalent to legal confusion cannot be granted by recognizing it as a de facto marriage.

Therefore, the plaintiff's consolation money and the claim for division of property on the premise that the living life between the plaintiff and the defendant is de facto marital is no longer reasonable.

3. Conclusion

Therefore, all of the plaintiff's claims of this case are dismissed. It is so decided as per Disposition.

Judges Lee Kang-won (Presiding Judge)