2014drid202741 (Divorce, etc.)

2014dden204051 (Counterclaims) Divorce, etc.

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

Busan Address

Busan District Court

Law Firm Doz.

(************************))

The plaintiff is the same as the plaintiff.

Busan place of service

Reference domicile is same as the Plaintiff.

Attorney Lee Jae-soo

1. KimCC (*********1************))

2. KimD (********* 4*********))

The case principal's domicile and reference domicile are the same as the plaintiff.

November 13, 2015

December 18, 2015

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

2. Property division:

A. The Defendant (Counterclaim Plaintiff) fulfilled the procedure for ownership transfer registration on the ground of the division of property as to the Plaintiff (Counterclaim Defendant) ******** the procedure for ownership transfer registration on the ground of the division of property as to the Plaintiff’s (Counterclaim Defendant)’s (Counterclaim Defendant) on the date on which the instant decision was made.

B. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 47, 190, 000 won with 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

3. The defendant (Counterclaim plaintiff)'s claim for consolation money is dismissed.

4. The plaintiff (a counterclaim defendant) shall be designated as a person in parental authority and a custodian of the principal of the case.

5. The Defendant (Counterclaim Plaintiff) pays the Plaintiff (Counterclaim Defendant) KRW 2,00,000 per month from November 14, 2015 to October 2, 2017 with the child support of the principal of the case, and KRW 1,00,000 per month from the next day to August 2, 2019, to the end of each month.

6. Defendant (Counterclaim Plaintiff) may, every month, visit the principal of the case from 00 to 20: 00.

7. The costs of lawsuit shall be borne by each party.

8. Paragraph 5 can be provisionally executed.

【Court of Second Instance】

In accordance with the principal lawsuit, the plaintiff (the counter-party defendant; hereinafter referred to as the "Plaintiff") and the defendant (the counter-party plaintiff; hereinafter referred to as the "defendant") are divorced. Paragraph 4 of this Article and the defendant are paid to the plaintiff as of the last day of each month a half million won from the day following the delivery of the copy of the instant complaint to October 2, 2017 with the child support of the principal of this case. Paragraph 4 of this Article and the defendant are paid to the plaintiff as of the last day of each month one million won from the next day to August 2, 2019.

[Counterclaim]

The plaintiff and the defendant shall be divorced by counterclaim. The plaintiff shall pay to the defendant 30 million won as consolation money and 20% interest per annum to the day of full payment from the day following the day of this judgment to the day of this judgment. The plaintiff shall pay to the defendant the amount calculated at the rate of 17, 660, and 00 won as division of property, and 20% interest per annum to the day of full payment from the day following the day of this judgment to the day of this judgment. The plaintiff shall designate the defendant as the relative and guardian of the principal of this case. The plaintiff shall designate the defendant as the child support of the principal of this case. The plaintiff shall pay to the defendant 2 million won per month from the day following the day of this judgment to October 2, 2017, and from the following day to August 2, 2019.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. On February 6, 1998, the plaintiff and the defendant were legally married couple who completed a marriage report, and they were heard by the principal of the case.

B. The Plaintiff and the Defendant, from the beginning of the marriage life, experienced conflicts due to the difference between the characteristics of each other, the difference between the market and the wife’s economic power, etc.

C. The Defendant made monthly payments to the Plaintiff, and 180,000 won per month living with the Plaintiff, and she took out loans without any consent from the Plaintiff. In the process, the Plaintiff took a bath to the Defendant, and the Defendant made three times an assault to the Plaintiff. The Defendant also prepared a letter to the effect that “In 2004 and 2008, the Defendant does not exercise violence, and does not incur any obligation without the Plaintiff’s consent.”

D. Meanwhile, the Plaintiff took a bath in the course of wrapping up to the Defendant, sent text messages containing the bath theory, and was also driving away from the Defendant’s residence.

E. In the course of dispute on October 2013, the Defendant assaulted the Plaintiff during the process of dispute, and thus, after hearing the horses from the Plaintiff that the Plaintiff would come to work, the Defendant is currently in separate lives with the Plaintiff and the instant principals until now.

[Ground of Recognition: Facts without dispute, entry of Gap 1 through 7 evidence (including branch numbers if there are numbers), family investigation reports by family investigation officers, the purport of the whole pleadings]

2. Determination on a principal lawsuit and a counterclaim divorce

In light of the above-mentioned facts and the fact that both the plaintiff and the defendant want to divorce through the principal lawsuit and the counterclaim of this case, and that the plaintiff and the defendant have no labor force to recover the marriage as they were separated from the other party since October 2013, it is reasonable to deem that the plaintiff and the defendant's marriage have reached a failure to the extent that they cannot be recovered. Thus, the plaintiff's claim for divorce of the principal lawsuit and the plaintiff's counterclaim divorce by the defendant are with reasons under Article 840 subparagraph 6 of the Civil Code.

3. Determination as to the claim of consolation money against counterclaim

According to the above facts, the plaintiff and the defendant are responsible for both the plaintiff and the defendant who were not able to lead a mixed life, such as the plaintiff and the defendant who were not able to lead to a smooth settlement of the conflict arising from the difference of economic power between the market price and the wife due to dialogue and communication with the other party's position or difficulties, rather than trying to make a full effort to understand the other party's position and difficulties, and take into account the other party's position and difficulties. On this issue, the defendant is responsible for both the plaintiff and the defendant who were not able to lead the married life, such as the plaintiff's debt without any doubt, or the defendant's exercise of violence, and the degree of responsibility seems to be similar.

Therefore, the defendant's counterclaim claim for consolation money on the premise that the plaintiff is mainly responsible for the failure of marriage is without merit.

4. Determination on the counterclaim for division of property

A. Details about the formation of the property;

The plaintiff was engaged in household affairs while raising the principal of this case as family heading, and the defendant ******** in a corporation, the average monthly income of KRW 5,783,710 as well as property formed by receiving loans from the defendant's monthly income to the remaining money.

(b) Property to be divided and its value;

(1) Property under the name of the Plaintiff

(A) Proactive property

111*********** Dong****** heading: 190,000,000 won

(2) Claims for the return of deposit for lease at residence: 125,00,000 won;

(B) Petty property

********* such******* the obligation to refund a deposit for lease: 140,00,000 won

(2) Property under the name of the defendant

(A) Proactive property

(1) Expected termination refund for pension savings and aggregate insurance: Six thousand and seven hundred and sixty-eight won.

(2) Expected retirement allowances: 29,882, 510 won.

(3) Insurance cancellation money on March 6, 2013: 28, 720, 884 won

(4) SM3 motor vehicles: 9, 700, 000 won

(B) No small property:

(3) The value of the property to be divided;

(A) Plaintiff’s net property: 175,000,000 won

(B) Defendant’s net property: 75,017,162 won

(C) Total amount of net property of the Plaintiff and the Defendant: 250, 017, 162 won

[Ground of Recognition: Facts without dispute, Gap 11, 12 evidence, Eul 1 and 2 evidence, this court****** as a result of each fact-finding conducted on Samsung Life Insurance Co., Ltd. and Samsung Life Insurance Co., Ltd., the purport of the whole pleadings and arguments]

C. Judgment on the defendant's assertion

The defendant alleged that the insurance cancellation amount of KRW 28,720,884 on March 6, 2013 was used as expenses for a sufficient community life, such as the payment of part payments of apartment, etc. However, the defendant's assertion is without merit, since the defendant withdraws the above insurance without the plaintiff's consent, and there is no evidence to acknowledge it.

(d) Ratio and method of division of property;

(1) Division ratio of property

In full view of all the circumstances shown in the pleadings in the instant case, including the following: (a) the details and degree of contribution of the Plaintiff and the Defendant to the acquisition, formation, and maintenance of the property subject to division as seen earlier; (b) the process, period, and distress of the marital life; (c) the age, occupation, income, and living capacity of the Plaintiff and the Defendant; and (d) the Plaintiff has to nurture the principal of the case, but there is no certain amount of income; and (e) the Defendant has a stable admission, etc., the division ratio of property is reasonable to determine either

(2) The method of division of property

Comprehensively taking account of all the circumstances revealed in the arguments in the instant case, such as the form of property subject to division, ownership, and utilization status, and convenience of division, it is reasonable to determine that the method of division of property is to pay to the Defendant the amount equivalent to the portion of the Defendant’s shortage according to the division ratio of property, inasmuch as the Plaintiff currently uses the automobile for the purpose of the instant principal, and thus, the property subject to division is not attributed to the Plaintiff.

(3) If a division of property is made in accordance with the above method, the amount of the property that the Plaintiff is obliged to pay to the Defendant shall be KRW 47,190,00 (=250, 017, X 45%) - KRW 65, 317, 162 (Tat below KRW 162).

E. Sub-committee

Therefore, as a result of division of property, the defendant is obligated to pay to the plaintiff ***** * the obligation to complete the transfer of ownership due to the division of property with respect to Ho SM3 Motor Vehicles on the date on which the decision of this case was made, and the plaintiff is obligated to pay to the defendant 47, 190, 000 won and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day after the day when the decision became final to the day when the decision is fully paid.

5. Determination ex officio of designation of a person with parental authority and a custodian, claim for child support, and visitation right;

(a) Designation of a person with parental authority and a custodian;

Although it seems that the defendant's will to nurture the principal of this case is strong, it is reasonable to designate the plaintiff as a person in parental authority and a custodian of the principal of this case for the smooth growth and welfare of the principal of this case, considering all the circumstances shown in the arguments of this case, such as the plaintiff and the defendant's marital life and failure failure, the situation where the plaintiff and the defendant wish to live with the principal of this case, the plaintiff's intent to nurture the principal of this case, and the age of the principal of this case.

(b) Claim for child support;

As long as the Plaintiff was designated as a person with parental authority and a custodian of the principal of this case, the Defendant has a duty to share the child support as the child support for the principal of this case. If the Plaintiff and the Defendant took part in all circumstances revealed in the pleadings of this case, such as the occupation and income level of the Plaintiff and the Defendant, the age and parenting status of the principal of this case, and the equity of sharing, it is reasonable to determine that the Defendant would pay to the Plaintiff KRW 1 million per person from November 14, 2015, which is the day following the date of closing the argument of this case until the day of reaching the age of this case, to the end of each month (it is reasonable to deem that the child support was paid at KRW 1.5 million per month and by telephone charges, etc. until the date of closing the argument).

(c) Interview (ex officio determination).

On the other hand, a non-nive parent has the right to interview with the principal of the case, unless it is contrary to the welfare of the principal of the case, and considering all the circumstances revealed in the arguments of the case, such as the fact of recognition and the age, gender, living environment and parenting situation of the principal of the case, the degree of contact between the defendant and the principal of the case, and the intention of the plaintiff and the defendant, it is reasonable to determine the frequency and time of interview as stated in Paragraph 6 of the Disposition.

6. Conclusion

Therefore, the plaintiff and the defendant's claim for divorce based on the principal lawsuit and counterclaim shall be accepted, and the defendant's claim for consolation money shall be dismissed as without merit. It is so decided as per Disposition with regard to the claim for division of property, the person with parental authority and guardian's decision, the claim for child support, and visitation right as above.

Judges Kim Hong-chul