[1] In a case where a property division agreement is made on the premise of a divorce, whether such agreement takes effect even in the case where the marital relationship remains in existence or a judicial divorce takes place (negative)

[2] In a case where a party whose divorce has been divorced seeks a division of property, the standard time for the division of property

[3] Whether the claim for division of property and the claim for consolation money should be offset (negative)

[1] The consultation on the division of property as stipulated in Articles 839-2 and 843 of the Civil Code refers to a consultation between the parties who already completed a divorce as to the division of property, which has been achieved through mutual cooperation of both parties, or between the parties who have not yet been divorced. Accordingly, in a case where the parties who have not yet divorced agree to divorce by agreement on the division of property in the future and consult on the division of the above property on the premise of such agreement, barring special circumstances, it shall be deemed that conditional declaration of intention is made on the condition that divorce between the parties would be achieved by agreement between the parties in the future, unless there are special circumstances. Thus, the agreement takes effect only in the case where a divorce by agreement has been reached after the consultation, and where a marital relationship remains without divorce by agreement or a judicial divorce is made by a lawsuit on the claim of divorce filed by one of the parties, such agreement shall not take effect due to the non-performance of the condition.

[2] Where a party who has completed a divorce seeks to divide the property created by mutual cooperation between the parties during the marriage, the division of the property shall, in principle, be calculated based on the time when the marital relationship between the parties is actually terminated. However, if considering the circumstances of support after the divorce in the division of the property, it is reasonable to determine the division of property by taking into account the circumstances after divorce

[3] The claim for division of property, which is recognized under Articles 839-2 and 843 of the Civil Act, cannot be deemed as having been specifically entitled because the scope and contents of the claim are unclear and uncertain until the specific contents have been formed through consultation or a court judgment. Therefore, it cannot be deemed as having been determined that the claim for division of property, which is a monetary claim, is a claim for the same kind

[1] Articles 839-2 and 843 of the Civil Act / [2] Articles 839-2 and 843 of the Civil Act / [3] Articles 492, 839-2 and 843 of the Civil Act

[1] Supreme Court Decision 93Meu409 delivered on December 28, 1993 (Gong1994Sang, 534), Supreme Court Decision 95Da23156 delivered on October 12, 1995 (Gong1995Ha, 3735) / [3] Supreme Court Decision 98Da58016 delivered on April 9, 199 (Gong199Sang, 851)

Claimant (Attorney Lee Han-hee et al., Counsel for the appellant)

Other party (Attorneys Jeong Il-sung et al., Counsel for the plaintiff-appellant)

1. The other party shall pay to the claimant the amount of KRW 15,00,000 and the amount at the rate of five percent per annum from the day following the day on which this adjudication is finalized to the day of full payment;

2. The claimant's remaining claims are dismissed;

3. The trial costs shall be three minutes, one of which shall be borne by the other party, and the remainder by the claimant, respectively.

The other party shall pay 50,00,000 won to the claimant and the amount equivalent to 25 percent per annum from the day following the day this judgment is finalized to the day of full payment.

1. Factual basis

The following facts may be acknowledged in full view of the descriptions of evidence Nos. 1, 2, 4, and 5-1 through 3 of evidence Nos. 1, 3, 1, 2, and 5-1, 3 (the petitioner asserts that the lawsuit Nos. 1, 2, and 3 was made by the other party's coercion, but there is no other evidence to prove that part of the witness No. 1's testimony corresponding thereto is not trusted and there is no other evidence to prove it), 4, 1, 2, and 3 of the witness's testimony (excluding the part not trusted before the witness's testimony) and the investigation report on the preparation of Kim Do-jin in this court:

A. On April 23, 1982, the claimant married with the other party, and thereafter, Nonparty 4 (the birth of November 28, 1982) was born between them.

B. After the marriage, the claimant and the other party have taken over and jointly operated the Smarket operated by Nonparty 2, who is the plaintiff's omitted. The claimant acquired a beauty artist's qualification in around July 1986 and operated the Smarket in the name of the other party, again run the Smarket in cooperation with the other party, and increased its income. The claimant acquired a driver's license and transferred his property to the other party, and the non-party 4's children and the sub-party 4's children and the sub-party 3 years. The claimant continued to run the Smarket while receiving Smarket treatment under the Smarket's diagnosis around December 1990, while he was under the Smarket's management, he purchased Smarket's license in the name of the other party 78 million won in the name of the other party, and completed the registration of ownership transfer in the name of the other party 50 million won in the name of the other party 50 million won in the above apartment deposit and the other party 50 million won in the name of the other party 50.5 million won in the first five billion won.

C. On November 1, 1994, the claimant was employed in Samsung Life Insurance Co., Ltd. and was employed as an insurance solicitor, and the claimant closed his singing room on or around October 1995, and was engaged in singinging room business by accepting the singing room with the total amount of KRW 25 million in total as facility cost for store lease deposit, singing room machines, etc. in the name of KRW 30 million,5 million.

D. On March 196, the claimant was aware of the fact that he had become aware of while running a singing room business and the other party was aware of it, at that time, Nonparty 4 agreed to divorce between the other party and the other party, and Nonparty 4 agreed to raise the other party and the claimant did not exercise the other party's right to claim the division of consolation money and the right to claim the division of property (the document No. 3 states that "the other party shall not receive consolation money and the right to claim the division of property at one percent (the right to claim the division of property is considered to mean the right to claim the division of property).

E. On April 23, 1996, the claimant was released from Korea on April 23, 1996, and the 15 days later returned to Korea, and the 15 days later would not block the act of unfolding again, and he left Korea again on September 3 of the same year and left Korea again on September 3 of the same year, and his whereabouts was concealed. The Claimant filed a complaint against the Claimant and Nonparty 5 as a crime of adultery, and the Claimant filed a divorce lawsuit against the Claimant, and was sentenced to a favorable judgment on January 21, 1997, and the judgment became final and conclusive on February 12 of the same year, and the Claimant was detained on May 19 of the same year, and was sentenced to a suspended sentence of two years on October 23 of the same year.

F. Meanwhile, while the claimant was under aviation cancer treatment due to the recurrence of cancer after the release, the claimant was at all insolvent. On the other hand, while the claimant was operating a singing room operated by the claimant, he transferred it to another person at the beginning of 1998, and is living at a pre-paid house with the cause of deposit for lease on a deposit basis, such as Nonparty 4, his husband and Nonparty 4.

2. Determination on this safety defense

The other party asserts that the claimant’s unlawful act is unlawful, since the claimant has agreed on the divorce with the other party and agreed on the division of property formed in the course of married couple’s life to waive all of the claim for division of property. Therefore, the claim for division of property in this case is filed after the agreement on division of property has been reached.

However, the agreement on the division of property as referred to in Articles 839-2 and 843 of the Civil Act refers to a consultation between the parties who already completed a divorce regarding the division of property, which has been achieved through their cooperation, or between the parties who have not yet been divorced. Accordingly, in a case where the parties who have not yet divorced agree on the divorce in the future and agree on the division of property on the premise of such agreement, barring any special circumstance, a conditional declaration of intention shall be made on the condition that the divorce shall take place between the parties in the future, unless there are special circumstances. Thus, if the parties have reached a divorce by agreement after the consultation, it shall be deemed that the agreement takes effect only in the case where the parties have reached a divorce as agreed upon, and where a marital relationship remains without divorce or a judicial divorce is made by the action on the divorce claim filed by one of the parties (see Supreme Court Decision 95Da23156, Oct. 12, 195).

In this case, according to the above facts, the claimant and the other party have been living together even after they agreed on the divorce, and the other party has brought a judicial divorce by filing a divorce lawsuit against the claimant, so the above agreement does not take effect due to the non-performance of the condition, and therefore, the above argument of the other party on the premise that the above agreement is valid is without merit.

3. Judgment on the merits

(a) Object of division of property;

First, as to the standard period of property division assessment, where a party who has completed a divorce seeks to divide the property achieved through mutual cooperation between the parties during the marriage, the property division assessment shall be based on the time when the marital relationship between the parties has been terminated in principle. However, in the case of property division taking into account the circumstances that are the support after the divorce, it shall be reasonable to determine the property division assessment by taking into account the circumstances up until the trial after the divorce. As such, the base period of property division assessment in this case where a claimant seeks to seek property division in liquidation between the claimant and the other party shall be the time of the judicial divorce on February 199

Meanwhile, according to the above facts, the value of the above apartment complex 1 and the value of the property for singing room business, which is the active property of the claimant and the other party around that time, may be assessed as a total of KRW 133 million ( KRW 78 million + KRW 55 million) unless there are other special circumstances. For these, the above active property is a negative property, which is a common property formed by the claimant and the other party through their efforts during the period of marriage and is subject to division. The above active property is a common property formed by the claimant and the other party through their efforts during the period of marriage, and the above passive property is also a debt incurred by the formation of common property and is subject to liquidation.

B. Determination as to the other party's counterclaim

The other party asserts that even if the claimant has a claim for division of property against the other party, the other party also has a claim for consolation money against mental suffering suffered by the other party due to the failure of marriage due to the claimant's wrongful act, so the above claim for consolation money is offset against the claimant's claim for division of property.

On the other hand, the claim for division of property, which is recognized under Articles 839-2 and 843 of the Civil Act, cannot be deemed as having been specifically entitled because the scope and contents of the claim are unclear and uncertain until the specific contents have been formed through consultation or a trial by the court (see Supreme Court Decision 98Da58016, Apr. 9, 199). Therefore, it shall not be deemed as having been offset because the purpose of claim for division of property and the claim for consolation money, which are monetary claims, cannot be viewed as a claim for the same kind as the claim for consolation money, and therefore, it shall not be deemed as having been allowed to offset the claim for division of property, which is premised on the existence of the claim for division of property and the claim for consolation money,

(c) Method and amount of division of property;

Considering the current status and ownership of the property subject to subdivision as indicated in the instant facts, and the various circumstances indicated in the instant hearing, such as the process of formation thereof, the property subject to subdivision shall be reverted to the other party rather than dividing the said apartment, etc. in kind, or transferring the right to share, rather than transferring the right to share to the claimant. However, the property value of KRW 68 million (78 million,00,000,0000,000,0000,0000,0000,0000,0000,0000,0000) calculated by deducting the value of the negative property from the value of the active property

Furthermore, the specific amount of the division of property is determined as 15 million won in light of all the circumstances indicated in the instant hearing, such as the age of the claimant and the other party, the period of marriage, the degree of contribution made by the claimant to the formation and maintenance of property, the circumstances before and after the claimant and the other party made an agreement on the division of property, and the fact that the claimant are under custody.

Therefore, the other party is obligated to pay the claimant's 15 million won as the division of property and the damages for delay at the rate of 5 percent per annum as prescribed by the Civil Act from the day after the date this judgment is finalized to the date of full payment.

Judges Kwon Soon-il (Presiding Judge)