2020Dhap200804 Divorce, etc.

2020dhap200811 Divorce, etc.

A

August 20, 2020

October 8, 2020

1. The Defendant (Counterclaim Plaintiff) pays the Plaintiff (Counterclaim Defendant) the amount of KRW 156,200,000 as division of property and the interest rate of KRW 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. The plaintiff (Counterclaim defendant)'s claim for consolation money and child support in the past and the defendant (Counterclaim plaintiff)'s counterclaim damages are dismissed, respectively.

3. The costs of lawsuit shall be borne by each person in combination with the principal lawsuit and counterclaim.

The claim of this lawsuit: The defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") shall pay 30,00,000 won as consolation money to the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") with 12% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment. The defendant shall pay 254,323,497 won as division of property and the amount calculated by the rate of 5% per annum from the day following the day of confirmation of this judgment to the day of complete payment. The defendant shall pay 62,40,000 won as the past raising expenses of the principal of this case and the amount calculated by the rate of 12% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

Claim of counterclaim: The plaintiff shall pay to the defendant 10,00,000 won as consolation money, and 12% per annum from the day following the day of service of a copy of the counterclaim of this case to the day of full payment. The plaintiff shall pay to the defendant 29,678,00 won as division of property and 5% per annum from the day following the day of confirmation of this judgment to the day of full payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report on 1998, and have one of the principal of the case and one of the adult children under the chain.

B. The Defendant was dissatisfied with the Plaintiff’s disregarding of the Defendant on the ground of economic infinite ability even though he did his best to re-employment in an difficult environment after his retirement due to the business difficulties in the company accompanying around 2009. The Plaintiff was dissatisfied with the Defendant’s authoritative and compensatory nature and the fact that the Plaintiff did not assist the Defendant in raising his own family affairs and children.

D. The Plaintiff and the Defendant had frequent disputes arising from the difference between the nature of the Plaintiff and the education center for their children, and also caused conflicts due to living costs. In the process, the Defendant used verbal abuse and violence against the Plaintiff.

E. From January 2010, the Plaintiff and the Defendant did not communicate with each other at all while living in a prison. The Defendant began living in a house around January 2020, which was after the filing date of the instant lawsuit ( July 15, 2019), and resided in the home and in the home and in the home, and left separately with the Plaintiff.

F. The Defendant had been living in a workplace after marriage, and the monthly income is KRW 2,200,00. The Plaintiff mainly takes charge of raising his/her own household and children after marriage. However, since around 2007, the Plaintiff was living in a workplace after marriage, and annual income was KRW 18,90,00,00,000, and KRW 16,813,330,000 for year 2015, and KRW 16,427,100 for year 2018. The Plaintiff is working in a personal business from August 2019.

G. The Defendant purchased an apartment on September 1990 and completed the registration of ownership transfer on October 6 of the same year. Since then, the reconstruction project was conducted for the said apartment, and acquired the ownership of the instant apartment around 2012.

H. Of the Plaintiff’s principal lawsuit, a voluntary conciliation was established on December 10, 2019 with respect to a divorce claim, designation of a person with parental authority and a person with custody, future childcare expenses, and visitation rights (hereinafter “instant divorce conciliation”). 【The grounds for recognition - Each of the certificates of subparagraphs A through 3, family fact investigation report by a family affairs investigator, and the purport of all pleadings.

2. Determination on the claim of consolation money

On the other hand, the Plaintiff and the Defendant seem to have failed to make all efforts to resolve the issues that may arise in their marital life, such as economic difficulties and personality differences, as well as to understand and take account of each other, and to make a long-term dialogue between each other, and thus, the failure of the marriage is likely to occur. Therefore, the principal responsibility of the failure of the marriage is for both the Plaintiff and the Defendant, and the degree of the same is determined equal. Therefore, the Plaintiff’s claim for consolation money and the Defendant’s counterclaim damages are without merit.

3. Determination as to the claim for division of property

A. Property subject to division: Attached Table 1 is as indicated in the “Detailed Statement of Property subject to Division” (the subject and value of property division shall be determined as of December 10, 2019, which is the date the divorce conciliation of this case is established; Provided, That in cases where consumption or concealment is easy as money and where there is a possibility of double inclusion if it differs at the base point of time, such as money, it shall be presumed that the marriage relationship has been extinguished as of July 15, 2019, and the subject and value of property division shall be determined by presumption that the money has been existing as of July 15, 2019. However, in cases where the value is expressed by agreement with the defendant, the amount shall

(b) The value of property to be divided;

1) Plaintiff’s net property: KRW 49,530,662

2) Defendant’s net property: 361,931,046 won

3) The aggregate amount of net assets of the Plaintiff and the Defendant: KRW 411,461,708. Determination of the parties’ assertion

Attached Form 1, among the list of property subject to division and the list of property non-recognized in Attached Form 2, the claim and judgment of each party shall be as stated in the column of "the allegation and judgment of each party".

(d) Ratio and method of division of property;

1) Division ratio of property: Plaintiff 50%, Defendant 50%

[Ground for determination] The degree of contribution of the Plaintiff and the Defendant to the formation and maintenance of the property subject to division as seen above, the Plaintiff raised the principal living expenses including the case principal's child support during the period of marriage, and other factors such as the process and period of marital life, the income, property and economic power of the Plaintiff and the Defendant:

2) The method of division of property: Taking into account the parties’ intentions, the ownership, acquisition, and maintenance of the property subject to division, and the circumstances indicated in the instant pleadings, such as the ownership of the property subject to division before, and the progress of the acquisition and maintenance thereof, the part of the amount to be reverted to the Plaintiff according to the above division ratio is determined to be paid to the Plaintiff by the Defendant.

3) Property division amount to be paid by the Defendant to the Plaintiff: KRW 156,200,000

[Calculation Form] ① The Plaintiff’s share of net property of the Plaintiff and Defendant according to the division rate of property

1,461,708 won x 50% x 411,461,708 won x 50% x 205,730,854 won (tacks less than won) ② The amount obtained by subtracting the Plaintiff’s net property from the amount under the above paragraph (1) (=205,730,854 won - 49,530,662 won)

[3] Division of property that the Defendant pays to the Plaintiff

② The amount under the above paragraph is 156,200,000 won which deducts a little amount under the above paragraph

E. Sub-committee

Therefore, the defendant is liable to pay the plaintiff 156,200,000 won as division of property and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when this judgment becomes final and conclusive to the day of full payment.

4. Determination on the claim for childcare expenses in the past of the principal lawsuit

A. The plaintiff's assertion

The Plaintiff asserts that, since the Defendant did not pay the child support for the principal of the instant case from May 201 to November 2019, the divorce conciliation of the instant case was completed, the Defendant is obligated to pay the Plaintiff KRW 62,40,000 as the past child support cost.

B. Determination

Since the defendant is the father of the principal of the case and is responsible for fostering the principal of the case together with the plaintiff, he is jointly liable with the plaintiff for the child support of the principal of the case. However, in consideration of the following circumstances acknowledged by the statement of No. 10 of the plaintiff and the purport of the entire pleadings, i.e., the defendant, who is living together with the plaintiff and the principal of the case, was partially responsible for community living expenses, such as paying a significant portion of his income to the plaintiff or paying 450,000 won per month to the plaintiff for the repayment of the principal and interest of the secured loan of the apartment owned by the plaintiff. ② Generally, the child support is recognized as part of community living expenses for the children spent while the couple is living together, it is reasonable to view that the defendant was partially responsible for the child support of the principal of the case, even if it is not adequate, so there is no reason to claim for child support of the plaintiff (However, it shall be reflected

5. Conclusion

Therefore, the plaintiff's principal lawsuit, the claim for consolation money, the defendant's counterclaim for consolation money is dismissed as it is without merit, and it is so decided as per Disposition as to the division of property.

Presiding Judge, Park Jae-won

Judges Mobileho

Judges or Jae-young