Plaintiff (Law Firm Sejong, Attorneys Yang Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Seow, Attorneys Lee Ho-soo et al., Counsel for the defendant-appellant)

June 13, 2017

Suwon District Court Decision 2015dhap77 decided August 19, 2016

1. Of the judgment of the court of first instance, the part of the claim for divorce and the part of the claim for division of property against the plaintiff who falls under the following order shall be revoked.

2. The plaintiff and the defendant are divorced.

3. The defendant shall pay to the plaintiff a division of property, ① the procedure for transferring the ownership of 99/100 of the shares owned by the defendant among Canada ( Address omitted) apartment management ○○○○○ (English address omitted), and ② the money calculated at the rate of 5% per annum from the day after the day when the judgment became final to the day of complete payment, to the day when complete payment is complete, with respect to the amount of 622,00,000 won and its amount.

4. The plaintiff's appeal as to the claim for consolation money and the claim for division of property among the judgment of the court of first instance are dismissed, respectively.

5. Of the total litigation costs, 2/10 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance is revoked. The plaintiff and the defendant shall be divorced. The defendant shall pay to the plaintiff 50,000,000 won as consolation money and 15% interest per annum to the day of full payment from the day following the delivery of a copy of the complaint of this case to the day of full payment. The division of property: ① the procedure of transferring the ownership based on the division of property as to the defendant's share 9,100 among the real property stated in the Disposition 3., ② the procedure of transferring the ownership based on the division of property is conducted, ② the amount of KRW 821,836,319 as well as the amount of KRW 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment (the plaintiff changed the purport of the appeal at the first instance and revised the purport of the claim along with the purport of the claim. Meanwhile, the plaintiff sought the procedure of transferring the ownership of the real property recorded in Canada, but there is no ground to view that the real estate registration system has been established with the Republic of Korea).

1. Basic facts

A. On July 2, 2013, both the Plaintiff and the Defendant filed a marriage report at △△△△△△ on a Canadian nationality, and resided in Qubebec. Before marriage with the Plaintiff, the Defendant was in a marital relationship with Nonparty 2 in fact with Nonparty 2, Nonparty 3, and Nonparty 4 in fact, and did not accurately notify the Plaintiff of the marital relationship.

B. From November 11, 2013 to December 17, 2013 (the defendant reported the place of service of the defendant to the head of the Seoul Immigration Office on November 22, 2013, and the period of stay issued by the head of the Seoul Immigration Office is until November 22, 2016), April 2, 2014 to May 2, 2014; from October 1, 2014 to October 25, 2014; from November 5, 2014 to May 22, 2015, the defendant returned to Canada while staying in the Republic of Korea from May 22, 2015 to May 22, 2015, and again resided in the Republic of Korea, not from May 22, 2015 to his/her domicile.

C. Meanwhile, on December 7, 2014, the Plaintiff entered the Republic of Korea and returned to Canada on January 19, 2015.

D. On March 19, 2015, the Plaintiff filed a lawsuit against the Defendant, including a divorce, with the Seoul Family Court. The grounds for divorce claimed by the Plaintiff are as follows: “When the spouse abandons one another in bad faith,” and “when there exist other serious grounds for making it difficult to continue the marriage” as stipulated in subparagraphs 2 and 6 of Article 840 of the Civil Act of the Republic of Korea (the Plaintiff changed the grounds for divorce into Article 8(2)(a) and (b) of the Canadian Divorce Act through a preparatory document dated July 7, 2016, and on June 22, 2015, the Defendant filed a lawsuit against the Plaintiff, including divorce, with the court located in the Republic of Canada Qua, Qua, Qua, of the Republic of Korea (the subsequent withdrawal). The grounds for divorce claimed by the Defendant have ceased to exist for a period of at least one year after the lapse of the marriage period of at least one year depending on the marriage period, depending on the type of marriage as stipulated in Article 8(2)(a).

E. During the instant lawsuit, the Plaintiff requested the Defendant to answer to the effect that “If the Defendant had a mind to maintain a matrimonial relationship with the Plaintiff, it would bring about 600 million won from the Plaintiff, and the Defendant’s transfer of ownership is registered in Busan apartment (attached Form 1 No. 1 among the Defendant’s active property indicated in the specification of division 1) purchased in the name of the Defendant, and that the Plaintiff may sell or lease real estate at Montreal (attached Form 2 among the Defendant’s active property indicated in the specification of division 1) and assign the Plaintiff with the management of property in the future.” However, the Defendant did not accept the Plaintiff’s attitude to accept the requirements by determining the deadline, while the Defendant stated that “the Defendant has a strong will to maintain a matrimonial relationship with the Plaintiff.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11, 12, 17, 18, 30, 31 (including the number of each unit) and the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money

A. Determination on the claim for divorce

(i) the applicable law of divorce and the provisions of Canada Divorce Act;

With respect to the claim for divorce of this case, Article 37 of the Korean Private International Act applies mutatis mutandis under Article 39 of the same Act, the Canadian Divorce Act, a corporation of the same home country as the Plaintiff and the Defendant, applies to the claim for divorce of this case (Divorce act, i.e., e., divorce and colonf.).

Section 2 (a), (b), and (3) of Article 8 of the Divorce Act are defined as follows:

- - Sound

The failure of the marriage is the failure of the marriage.

(2) The failure of a matrimonial relationship is established as follows: (a) both spouses are in a separate state at the time of filing a divorce lawsuit; (b) are in a separate state for at least one year prior to the judgment (decision) of a divorce lawsuit; or (b) the other spouse of a divorce lawsuit commits an unlawful act after marriage; or (ii) are suffering from any physical or mental distress that makes it impossible for one spouse to continue living together with the other spouse.

Calculation of the period of separate stay.

(3) In relation to paragraph (2) (a) of the above, the period during which one spouse is separated from the other spouse, with the intention of the other spouse, shall be deemed to be the period during which both spouse is separated from the other spouse.

2) Determination

According to the above facts of recognition, the plaintiff and the defendant filed the lawsuit of this case separately with the defendant, who are the spouse of the other party, so it is clear that the plaintiff and the defendant were in a separate state on March 19, 2015 when the lawsuit of this case was filed, and that they were in a separate state for at least one year until the date immediately preceding the date the judgment of the trial was rendered, and that the defendant filed a divorce lawsuit against the plaintiff in Canada in Canada, it is reasonable to order the plaintiff and the defendant to divorce as prescribed in Article 8 (2) (a) of the Canadian Divorce Act in this case to which the Canadian Divorce Act applies. Accordingly, the plaintiff's claim for divorce of this case has merit.

Meanwhile, the Plaintiff asserts that there exists a ground for divorce under Article 8(2)(b) of the Canadian Divorce Act to the Defendant. However, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant committed an unlawful act after marriage with the Plaintiff, or that the Plaintiff caused physical or mental pain to the extent that it is impossible to continue living together with the Plaintiff, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the Plaintiff’s assertion is without merit.

B. Determination as to the claim of consolation money

The plaintiff claims consolation money due to divorce against the defendant. As to the claim of consolation money of this case, Article 32 (3) of the Korean Private International Law, the Civil Code of Qubec (Civil Code 3) of Canada, which is the applicable law of legal relations existing between the plaintiff and the defendant, shall apply.

However, in order for the plaintiff to claim consolation money due to divorce against the defendant, it should be recognized that the defendant committed a tort to the extent that the plaintiff should be held liable for the failure of the marriage to the plaintiff. However, as recognized earlier, the evidence presented by the plaintiff alone is insufficient to acknowledge that the plaintiff committed a tort due to physical or mental suffering that the plaintiff's and the defendant's marital relationship meet the separate period stipulated in the Canadian Divorce Divorce Act, and that the defendant committed a tort due to the plaintiff's non-living life after the marriage with the plaintiff.

Therefore, the plaintiff's claim for consolation money is without merit without further review.

3. Determination as to the claim for division of property

(a) The applicable law concerning division of property;

With respect to the claim for division of property of this case, Article 37 of the Korean Private International Act which applies mutatis mutandis under Article 38 (1) of the same Act and Article 37 of the same Act which applies mutatis mutandis under Article 38 (1) of the Korean Private International Act, the Civil Act of Canada, Qubec (Article 414 through 426 of the same Act concerning the property and division of property based on marriage relation provided for in Articles 414 through 426 of the same Act (Article 414 through 426 of the same Act) and Article 448 below and Article 448 shall apply to the claim for division of property of this case.

(b) Property and value to be divided;

(a) Property and value to be divided: as shown in the attached Table 1 detailed statement; and

2) Determination of the parties' arguments: as shown in the attached Form 1 List and the attached Form 2 List of Non-Recognized Property.

(c) The ratio and method of division of property;

1) Division ratio of property: Plaintiff 80%, Defendant 20%

[Ground for determination] Considering the various circumstances indicated in the pleadings in the instant case, such as the period of marriage between the Plaintiff and the Defendant, the developments leading up to the acquisition of the property subject to division, the source of funds used for the formation and maintenance of the property subject to division, the degree of contribution by the Plaintiff and the Defendant to the creation and maintenance of the property subject to division, the age, occupation, property and economic power of the Plaintiff and the Defendant, the process of marital life, the process of marital failure, and the process of marriage failure, the exception provisions of equal division stipulated in Article 422(4) of the Civil Code of Canada, and the compensation provisions for the contribution of Article 427(5) of the above Act, etc. (see, e.g., the reference materials submitted on July 4, 201

2) The method of division of property: The name and form of the property subject to division, the process of acquisition, the intent of the parties to the division, and in particular, the loan obligation borne by the Plaintiff against the Bank M2 Montreal (No. 1 of the Plaintiff’s passive property indicated in the list of specifications of division 1) is offered as security and borne by the Plaintiff’s active property listed in the table of specifications of division 1 (No. 25-1, No. 26 of the Plaintiff’s active property). Thus, it would be desirable to match the ownership of the above real property with the ownership of the above real property and the ownership of the obligation. Considering the various circumstances revealed in the argument of this case, it would be desirable to transfer 9/100 of the above real property owned by the Defendant to the Plaintiff. The remaining property excluding this shall be reverted to the Plaintiff under the current name and the Defendant’s responsibility, and as a result, it is determined that the Defendant pays in cash the insufficient part of the amount to be reverted to

D. Property division amount that the defendant should pay to the plaintiff: 622,000,000 won (which shall be less than the amount calculated below)

【Calculation Form】

① The Plaintiff’s share according to the division of property out of the total net property of the Plaintiff and Defendant:

277,298,992 won = The sum of net property of the plaintiff and the defendant = 346,623,740 won ¡¿ 80% of the division of property against the plaintiff)

② The Plaintiff’s net property in the status of transferring 99/100 of the Defendant’s shares in real estate No. 2, from among the Defendant’s active property indicated in the attached Table 1 list:

- 345,212,579 won (=654,487,054 won + 309,274,475 won)

(3) From the amount of paragraph (1) above, the amount after deducting the Plaintiff’s net property (B):

622,511,571 won = 277,298,92 won - (- 345,212,579 won)

E. Sub-decision

Therefore, the Defendant is obligated to implement the procedures for transferring ownership based on division of property with respect to the Defendant’s active property No. 9,100 among the Defendant’s active property indicated in the separate sheet No. 1, and to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act and the Canadian Interest Act from the day following the day when this judgment became final and conclusive to the day when delay liability arises to the Plaintiff, and to pay damages for delay calculated at the rate of 622,00,000,000 per annum.

4. Conclusion

Therefore, the plaintiff's claim for divorce is justified, and the claim for consolation money shall be accepted, and it shall be dismissed. Since the part of claim for divorce among the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted, and the part of claim for divorce among the judgment of the court of first instance shall be revoked and the plaintiff's claim for divorce shall be accepted. Since the part of claim for consolation money among the judgment of the court of first instance is justified with this conclusion, the plaintiff's appeal shall be dismissed as it is without merit, and the part of claim for division of property among the judgment of the court of first instance shall be determined as above. Since the part of claim for division of property among the judgment of the court of first instance is unfair with some different conclusions, the part of the

(attached Form omitted)

Judges Kim Yong-hun (Presiding Judge) Park Jae-hunon

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주2) Calculation of period of separation (3) For the purpose of paragraph (2)(a), (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other.

주3) 캐나다 퀘벡주 민법 제1457조에는 다음과 같이 규정되어 있다. Civil Code of Quebec, Book Five Obligations, Chapter III Civil Liability, Division I Conditions of Liability, §1. General provisions 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage of law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

주4) 422. The court may, on an application, make an exception to the rule of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan (chapter R-9) or to similar plans where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them.

주5) 427. The court, in declaring separation from bed and board, divorce or nullity of marriage, may order either spouse to pay to the other, as compensation for the latter’s contribution, in property or services, to the enrichment of the patrimony of the former, an allowance payable all at once or by instalments, taking into account, in particular, the advantages of the matrimonial regime and of the marriage contract. The same rule applies in case of death; in such a case, the advantages of the succession to the surviving spouse are also taken into account. Where the right to the compensatory allowance is founded on the regular cooperation of the spouse in an enterprise, whether the enterprise deals in property or in services and whether or not it is a commercial enterprise, it may be applied for from the time the cooperation ends, if this results from the alienation, dissolution or voluntary or forced liquidation of the enterprise.

주6) 금전채무불이행에 따른 지연손해금에 관하여는 캐나다 퀘벡주 민법 제1617조 및 캐나다 이자법 제3조에 다음과 같이 규정되어 있다. Civil Code of Quebec, Book Five Obligations, Chapter VI Performance of Obligations, Division II Right to enforce performance, §6. Performance by equivalence. II. Assessment of damages. 1. Assessment in general 1617. Damages which result from delay in the performance of an obligation to pay a sum of money consist of interest at the agreed rate or, in the absence of any agreement, at the legal rate. The creditor is entitled to the damages from the date of default without having to prove that he has suffered any injury. A creditor may stipulate, however, that he will be entitled to additional damages, provided he justifies them. Interest Act, Rate of Interest 3. Whenever any interest is payable by the agreement of parties or by law, and no rate is fixed by the agreement or by law, the rate of interest shall be five per cent per annum.