2015drid205945 Action for divorce, etc.

KimA (************ 2***********)))

Incheon Address

Reference domicile Incheon

Law Firm Settlement, Attorney Park Jae-soo

1. KimB (********* 1**************))

Busan Address

Seoul basic domicile

(************ 2**********)

Busan Address

[Defendant-Appellant]

September 22, 2015

October 2015, 2010

1. The plaintiff and defendant KimB are divorced.

2. Defendant KimB pays to the Plaintiff 20 million won as consolation money and 5% per annum from August 28, 2015 to October 20, 2015, and 20% per annum from the next day to the day of full payment.

3. The Plaintiff’s claim against Defendant NewCC and the claim for division of property against Defendant KimB and the remainder of the above claim are dismissed, respectively.

4. The costs of lawsuit shall be borne by each person.

5. Paragraph 2 can be provisionally executed.

The defendants shall pay to each plaintiff 50 million won consolation money with 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment. The defendant Kim Dong-B shall pay to the plaintiff 50 million won as division of property and 5% interest per annum from the day following the day of the confirmation date of this case's judgment to the day of complete payment.

1. Determination as to the claim of divorce and consolation money

A. Facts of recognition

1) The Plaintiff and Defendant KimB were legally married couple in September 2009 and the marriage report was completed on June 29, 2010. Defendant KimB had married with Defendant NewCC, which was the former wife, Kim Jong-B had his father Kim DD (19* * * * 19) and ASEAN KimE (19* * *). The Defendant is a first marriage.

2) Defendant KimB’s former wife Defendant NewCC and ASEAN KimE were living in Busan, but they became aware of the fact that the Plaintiff and Defendant KimB were remarried around April 2010.

3) The Plaintiff and Defendant KimB, while living together with their husband and wife, were often in conflict with each other due to their dissatisfactions and opinions on economic activities, etc., on the other party’s living habits and the other party’s living habits, and were in conflict with each other twice.

4) Defendant KimB declared that he will divorce to the Plaintiff on November 1, 2010, and had his house located in the Changwon around the 17th day of the same month, so far as he was living separately with the Plaintiff.

5) On November 29, 2010, Defendant KimB filed a lawsuit seeking a divorce against the Plaintiff as the Changwon District Court 2010ddan14593, which decided on March 23, 2012, Defendant KimB rendered a judgment dismissing the claim for divorce by Defendant KimB on the ground that the failure of the marital relationship between the Plaintiff and Defendant KimB was unilaterally responsible for the Plaintiff, while recognizing that the marital relationship between the Plaintiff and the Defendant KimB was broken down on March 23, 2012. The said judgment became final and conclusive on June 18, 2013.

6) Meanwhile, on April 9, 2014, the Plaintiff filed a petition with the Busan Family Court for a trial seeking the commencement, etc. of the traditional guardianship against Defendant KimB as the Busan Family Court 2014Ra1275. On September 16, 201, the Busan Family Court rendered a judgment dismissing the original claim on the ground that it is difficult for Defendant KimB to find it difficult for him/her to handle affairs due to mental constraints, and the said judgment became final and conclusive on October 3 of the same year.

7) On December 22, 2014, the Plaintiff filed a lawsuit seeking a divorce against Defendant KimB by the Busan Family Court 2014Ddan205474, but the lawsuit was withdrawn on July 2, 2015.

[Grounds for Recognition] 1 to 8, 13, and 16 Evidence A (including each number), the whole pleadings

Purport

B. Determination

According to the above facts, the marital relationship between the plaintiff and the defendant KimB was caused by the defendant's fault, which committed not fulfilling the duty of living together, support, and cooperation, and it was difficult to continue to exist due to the defendant's fault. This constitutes a ground for divorce under Article 840 (2) and 6 of the Civil Code. Thus, the plaintiff's claim for divorce against the defendant KimB is justified.

Furthermore, since the marriage between the plaintiff and the defendant was caused by the failure of the defendant's main cause attributable to the defendant, and it is clear that the plaintiff suffered mental loss, the defendant KimB is obligated to pay consolation money to the plaintiff. Considering the real marriage period of the plaintiff and the defendant KimB, the circumstances leading to the failure of marriage, and the degree of the failure of the marriage liability, it is reasonable to determine consolation money amounting to KRW 20 million.

Therefore, the Plaintiff and Defendant KimB are divorced, and Defendant KimB is obligated to pay to the Plaintiff consolation money of KRW 20 million, and Defendant KimB, as sought by the Plaintiff, the multiple copies of the instant complaint delivered to the Defendant from August 28, 2015 to August 20, 2015, which is reasonable to dispute over the scope of the Defendant’s obligation to perform, 5% per annum under the Civil Act until October 20, 2015, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment.

Meanwhile, the Plaintiff asserted to the purport that Defendant NewCC was liable to pay consolation money jointly with Defendant KimB, because Defendant KimB’s departure from Defendant KimB and the Defendants committed unlawful acts such as living together with the Plaintiff and Defendant KimB, and thus the marriage relationship between the Plaintiff and Defendant KimB has ceased. However, there is no evidence to prove that Defendant NewCC participated in the marital life of the two parties before the actual failure of the marriage relationship between the Plaintiff and Defendant KimB and caused the failure of the marital life of the two parties.

2. Determination as to the claim for division of property

The Plaintiff asserts to the effect that Defendant KimB is obligated to pay the Plaintiff property division of KRW 50 million and delay damages therefrom, taking into account the support aspect, etc.

However, there is no evidence to acknowledge that the Plaintiff and Defendant KimB have any property jointly formed by two persons during the marriage period, or that the Plaintiff directly and indirectly contributed to the maintenance and increase of Defendant KimB’s property, etc.

Therefore, the plaintiff's claim for division of property against the defendant KimB is without merit.

3. Conclusion

Therefore, the plaintiff's claim for divorce against the defendant KimB and the claim for consolation money within the scope of recognition thereof are justified. The claim against the defendant KimB and the claim for division of property against the defendant KimB and the remaining claim for consolation money are dismissed, since they are without merit.

Judges Kim Jong-ok