2016dward7988 (Divorce) Divorce

2017drid 1819 (Counterclaims) Divorce, etc.

A (1962, South Korea)

Address

Reference domicile

B (1965,000)

Busan Address

Reference domicile

Attorney Lee Do-young

March 21, 2017

April 18, 2017

1. The plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced by the principal lawsuit and the counterclaim.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) the amount of property division of 20 million won and 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

3. The plaintiff (Counterclaim defendant)'s claim for the child support of the main lawsuit, the defendant (Counterclaim plaintiff)'s claim for consolation money and the counterclaim support payment claim are all dismissed.

4. The costs of lawsuit are assessed against Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) respectively. The costs of lawsuit are assessed against Plaintiff (Counterclaim Defendant).

[This lawsuit] Plaintiff (Counterclaim Defendant; hereinafter Plaintiff 1) and Defendant (Counterclaim Plaintiff; hereinafter Defendant 2) are divorced. The Defendant shall pay to the Plaintiff 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment with respect to the Plaintiff’s child’s past childcare expenses of KRW 180,000,000,000, and with respect to this, the Defendant shall pay to the Plaintiff 15% interest per annum.

[Counterclaim] The plaintiff and the defendant shall be divorced. The plaintiff shall pay to the defendant consolation money at the rate of 15% per annum with respect to consolation money of 20 million won, 50 million won as division of property, 50 million won as overpaid payment, 50 million won as overpaid payment, and 15% per annum from the day following the sentencing day of this case to the day of full payment.

1. Basic facts

On October 30, 1990, the plaintiff and the defendant filed a marriage report on October 30, 199, have the maximum of 00 children who have attained majority and **.

[Grounds for recognition] Gap 1, 2, and 3 evidence, the purport of the whole pleadings

2. Judgment on the claim for divorce between the principal lawsuit and the counterclaim and the claim for counterclaim consolation money

In light of the following circumstances acknowledged as Gap 4 and 5 evidence and the purport of the entire pleadings, namely, the plaintiff and the defendant have been separated for a long time from around 1996 to the present time, and considering the fact that each party's principal lawsuit and counterclaim are seeking a divorce, the marriage between the plaintiff and the defendant is not able to recover due to failure, and this constitutes a cause of judicial divorce as prescribed by Article 840 subparagraph 6 of the Civil Act.

Therefore, both the plaintiff's claim for divorce against principal lawsuit and the defendant's counterclaim for divorce are justified.

On the other hand, the defendant's abandonment of the defendant suffering from mental illness caused the failure of the marital relationship by violating the duty of living and the duty of support. Thus, the plaintiff's claim for divorce is the claim for divorce by the responsible spouse, and the plaintiff is obligated to pay consolation money due to the failure of the marital relationship to the defendant. However, the defendant's claim is not accepted because there is no evidence to acknowledge the above claim.

3. Determination on the claim for division of property

According to the statement and the purport of Eul evidence No. 1, the plaintiff and the defendant's property created during the marriage, and there is apartment complex located in the Nam-gu Busan Metropolitan City where the plaintiff completed the registration of ownership transfer in the future on July 28, 1992. It is recognized that the plaintiff, while the lawsuit in this case is pending, attempted to pay KRW 100 million to ** * 100 million and completed the registration of ownership transfer. Since the above father's property was disposed of after the bankruptcy of the marriage, it is deemed that the plaintiff held KRW 100 million as it is and included in the property subject to division.

In addition, taking into account the various circumstances shown in the pleadings of the instant case, such as the Plaintiff and the Defendant’s contribution to the formation and maintenance of the property subject to division, the ratio of division of property to Plaintiff 80% and Defendant 20%, taking into account the degree of contribution, intentional age, occupation, health, the process and period of marital life, and the state of bringing up children.

Therefore, the Plaintiff is obligated to pay to the Defendant the amount of property division of KRW 20 million ( = 100 million x 20%) and damages for delay calculated by the rate of KRW 5% per annum under the Civil Act from the day after the judgment of this case is finalized to the day of full payment.

4. Determination as to the claim for child support at home

A. The plaintiff's assertion

The plaintiff was born by the defendant with the maximum of 00 and maximum ** 15 years of age, and the defendant must pay the plaintiff the amount of KRW 180,000,000 at the past rearing expense.

B. Determination

In a case where only one parent raises a child due to any cause, barring special circumstances, such as where a child under one parent raisess a child, such child may claim for reimbursement of expenses incurred in the past because the child is born at the same time with the birth of the child, unless there are special circumstances, such as where the child under one parent raises the child, including the unilateral and dual purpose or motive of the bringinger, or where the child does not assist the other party in the benefit of the child, or where the bringing the child to the other party is contrary to equity, and where it is deemed reasonable that the other party share the child at the same time as the child is born, barring special circumstances (see Supreme Court en banc Order 92S21, May 13, 1994).

However, the following circumstances, which were seen earlier or acknowledged by the overall purport of statement and pleading as follows, namely, from around 1996, that the Plaintiff brought up his own child, appears not to reflect the Defendant’s intent in the process. The Defendant did not properly engage in economic activities due to mental illness, etc., while the Plaintiff continued to engage in economic activities, the Plaintiff and the Defendant did not pay the Defendant’s living expenses for a period exceeding 20 years, and the Plaintiff did not pay the Defendant’s living expenses for a separate period. The Plaintiff filed a claim for divorce only when the first suit was filed, and the Plaintiff did not separately claim or claim the childcare expenses. The Plaintiff included the claim for the past childcare expenses by changing the purport of the lawsuit that the Defendant filed a counterclaim. When the Plaintiff stated that the Defendant paid the Defendant the amount of KRW 10 million and expressed his intent to agree, it is not reasonable to have the Defendant share the past childcare expenses with the Defendant.

Therefore, the plaintiff's assertion is without merit.

5. Determination on the claim for support fees

A. The defendant's assertion

Since the Plaintiff failed to perform its duty to support the Defendant who suffered from mental illness due to depression, the Plaintiff is obliged to pay to the Defendant an excessive fee of KRW 50 million.

B. Determination

With respect to the past support allowances among husband and wife's support duty, barring any special circumstance, a person eligible for support may claim payment of support allowances only for those after the person liable for support has failed to perform the support duty even though the person liable for support has requested the person liable for support to perform the support duty, and thus, despite the husband and wife's request for performance of the support duty, the spouse's failure to perform the support duty is deemed to fall under delay of performance due to his/her failure to perform the support duty, or otherwise, if not, he/she is paid support allowances before the request for performance, only under special circumstances under the nature of the support duty or the concept of equity (see Supreme Court Decision 2011Da96932, Dec. 27, 2012).

As seen earlier, the circumstance that the Defendant suffered from mental illness and did not properly engage in economic activities is determined. However, in light of the following circumstances, namely, the Plaintiff raised two children by separating the Defendant from the Defendant for a long time, and did not receive child support from the Defendant, and the Plaintiff did not receive the child support from the Defendant, it is difficult to deem that there are special circumstances to acknowledge that the Defendant was liable to pay the Defendant with the high-priced Defendant for the payment of the support fee and the refusal fee solely for the circumstance that the Defendant suffered from mental illness and did not properly engage in economic activities, and there is no other evidence to acknowledge this differently.

Therefore, the defendant's argument is without merit.

6. Conclusion

Thus, the plaintiff's claim for divorce against the principal lawsuit and the defendant's counterclaim divorce are accepted respectively, and the plaintiff's claim for child support for the principal lawsuit, the defendant's claim for consolation money for counterclaim, and the counterclaim support fees are dismissed, respectively, and the defendant's claim for division of property against the counter

Judges Park Young-young