[Defendant-Appellant] Plaintiff (Attorney Hwang Jong-sung, Counsel for defendant-appellant)

Other party (Law Firm Shin, Attorneys Lee Byung-il et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2006Ra736 dated September 18, 2007

1. The adjudication of the first instance shall be revoked;

2. The other party shall pay to the claimant 50 million won as division of property and 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

3. The claimant's remaining claims are dismissed.

4. One-third of the total expenses for inquiry shall be borne by the claimant, and the remainder by the other party.

The other party shall revoke the judgment of the first instance. The other party shall pay to the claimant 40 million won and 20% interest per annum from the day after the date of confirmation of the judgment of this case to the day of full payment.

1. Determination on the other party's main defense

On February 1, 2005, the claimant seeks to pay KRW 400 million as a division of property. The other party agrees with the claimant on February 1, 2005 to pay KRW 70 million as a division of property and consolation money to the claimant. Since the other party paid the above money on the same day, the claimant asserts that the claim in this case is unlawful.

According to the records of Gap evidence No. 1, Feb. 1, 2005, it is recognized that the agreement was prepared and presented on Feb. 1, 2005 that "the appellant and the other party are mixed with the agreement on Oct. 26, 2004, and the other party pays 70 million won to the claimant as property division and consolation money under both parties' agreement." However, according to the records of this case, it is recognized that all other parties are prepared and sealed to the other party for the preparation and authentication of the above agreement, and the certificate of personal seal impression and the certificate of personal seal impression issued by the claimant necessary for the above agreement and the certificate of personal seal impression issued by the other party. Thus, the claimant must prove that he was delegated with legitimate authority by the other party (see Supreme Court Decision 2002Da69686, Apr. 8, 2003, etc.). Thus, it cannot be viewed that the above agreement was made in accordance with the other party's genuine intent.

2. Facts of recognition;

The following facts are acknowledged according to the overall purport of the record and examination of this case.

A. On May 1, 1985, the claimant and the other party are legally married couple who completed a marriage report, and have given birth of one male and female between them. During the marriage period, the claimant was in charge of domestic affairs as the occupational father, and the other party was in charge of income-making activities as the company members.

B. On October 26, 2004, the claimant and the other party shared a divorce, and the other party remitted KRW 70 million to the claimant on February 1, 2005.

C. On November 15, 1996, the other party purchased the apartment of this case, which had been residing in the apartment of this case, even after the agreement was reached between the claimant and the other party. On April 2006, the other party sold the apartment of this case and purchased the same apartment No. 120 Dong 501, and moved into the new apartment of this case on May 2006, and the appellant had the other party reside separately from the other party. On April 2006, the market price of the apartment of this case was equivalent to KRW 95 million.

D. On April 19, 2006, at the time of selling the apartment of this case, the other party paid 50 million won to the claimant at the cost of establishing a residential area.

E. From October 201, the claimant had been married to operate the Lestop lease with the trade name, “○○○○○,” located in the area of the party branch of Seongbuk-gu, Sungnam-si, Seoul-si. The claimant transferred the above Lestop lease with the funds for acquiring and operating the said Lestop, KRW 132 million from the other party ( KRW 10 million on August 28, 2001, KRW 5 million on September 13, 2001, KRW 100,000 on October 5, 2001, KRW 67 million on October 8, 2001, KRW 7 million on October 7, 2001, KRW 7 million on October 74, 2007, KRW 60 million on August 26, 2004, KRW 500,000,000 on August 4, 200.

F. Meanwhile, with respect to the operation of the above Lestop, the claimant was liable for the loans for supporting micro enterprises to the National Bank. However, on August 2005, the other party repaid the above loans instead of the above loans.

3. Object of the division;

According to the above facts of recognition, each of the following properties in the name of the claimant and the other party are property acquired and maintained by joint efforts during marriage and actually belongs to the co-property of the claimant and the other party regardless of their names, and thus, it is subject to division of property following the divorce of this case (each of the claims between the claimant and the other party against the subject and value of division of property recognized below shall be excluded).

(a) Active property;

(1) The name of request

(1) KRW 70 million paid by the other party on February 1, 2005

(Appellant) Although the petitioner asserts that he/she used 35 million won of the above money for the cost of living, there is no evidence to acknowledge it.

(2) KRW 50 million paid by the other party on April 19, 2006

(3) 45 million won in total of Lestop rental deposits and premiums.

(4) Total of KRW 165 million

(3) If the claimant has already disposed of Lestop, the property division shall not be the object of the property division unless the other party has already disposed of Lestop in money paid to the claimant by the business fund during the marriage period, but such circumstances shall be considered in calculating the division ratio).

(2) The other party's name

Around April 2006, the apartment of this case is KRW 850 million (the amount of KRW 50 million paid to the claimant on April 19, 2006) out of the market price of KRW 95 million .5 million (the amount of KRW 50 million paid to the claimant on April 19, 2006).

(3) Total

1.0 million won (=165 billion won + 85 billion won)

4. Amount and method of division of property;

A. Considering the various circumstances indicated in the argument in the instant case, such as the type of the property subject to division, its details and status of acquisition, and current ownership, as seen above, the division of the property in the instant case ought to be determined and reverted to the claimant and the other party according to the current status of holding, and as a result, if the property in the instant case exceeds or falls short of the amount to be ultimately reverted to each party, it is reasonable to settle the property in cash.

B. The extent of efforts by the claimant and the other party with respect to the acquisition and maintenance of the property subject to division, in particular, while the claimant has been provided with KRW 132 million from the other party during the marriage period, he/she disposed of the Lesssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ands

C. Therefore, the other party is obligated to pay the claimant's net property at the rate of 50 million won, which exceeds 85 billion won, his/her own net property at the rate of 85 billion won and damages for delay at the rate of 5% per annum from the day following the day when the decision of this case is finalized to the day of complete payment.

5. Conclusion

If so, it is reasonable to determine the claimant's claim for division of property as above. Since the first judgment is unfair with different conclusions, it shall be revoked, and it shall be decided as per Disposition by accepting part of the claimant's appeal.

Judges Jeong Young-hun (Presiding Justice)