2019Dhap202422 Divorce, etc.

2020dhap200521 Divorce, etc.

A

Section B.

November 12, 2020

December 17, 2020

1. The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) shall be divorced by the principal lawsuit and counterclaim.

2. The plaintiff (Counterclaim defendant)'s claim of consolation money and the defendant (Counterclaim plaintiff)'s claim of consolation money are dismissed, respectively.

3. The Defendant (Counterclaim Plaintiff) pays the Plaintiff (Counterclaim Defendant) the amount of KRW 179,130,000 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.

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

In this lawsuit: Claim 1 and the Defendant (hereinafter referred to as the “Defendant”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) 30,000,000 won with 15% per annum from the day following the service date of a copy of the complaint of this case until May 31, 2019, and 12% per annum from the following day to the day of complete payment, and shall pay to the Plaintiff 761,268,098 won with 761,268,098 won as division of property and the amount calculated by the rate of 5% per annum from the day following the day of this judgment to the day of complete payment.

○ Counterclaim: Section 1 of the Disposition and the Plaintiff pay to the Defendant 30,000,000 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.

A principal lawsuit and counterclaim shall also be deemed a principal lawsuit and counterclaim.

1. Facts of recognition;

A. The plaintiff and the defendant had two children as legal couple who completed the marriage report on 1989.

B. The Plaintiff and the Defendant frequently disputed the difference in nature during the marriage period. At around 2011, the Plaintiff suspected that the Defendant was in an inappropriate relationship with the female called “○○○”, and thought that it was hidden by the Defendant, and the Plaintiff had a big dispute with the Defendant. At the end of the dispute with the Defendant, the Plaintiff and the Defendant were living separately until now since that time.

D. The plaintiff and the defendant, except where the plaintiff attended the defendant's father's funeral ceremony after his stay.

There was no exchange. On October 2018, the Defendant sent a text message demanding a divorce to the Plaintiff. Accordingly, the Plaintiff sent a text message to the Defendant on October 2018. E. The Plaintiff filed the instant lawsuit on November 15, 2018, and the Defendant filed the instant counterclaim on March 17, 2020.

[Ground of recognition] Each entry of Gap evidence Nos. 1 through 5 (including the number with each number; hereinafter the same shall apply) and the purport of the whole pleading

2. Determination on the claim for divorce and consolation money

A. A principal lawsuit and counterclaim divorce claim: Each of the grounds under Article 840 subparagraph 6 of the Civil Act exists.

B. Claim of consolation money for the principal lawsuit and counterclaim: None of the grounds therefor.

【Reasons for Determination】

(1) Recognition of the failure of marriage: All the circumstances, including the fact that the plaintiff and the defendant want to proceed to divorce as the principal lawsuit and counterclaim in addition to the above fact of recognition, including the fact that the plaintiff and the defendant want to proceed to divorce from around 2011, and that there seems to be no possibility of continuing the marriage life in the future as they lose trust in each other

② The main responsibility of the failure of the marriage is both parties, and the degree is equal: the Plaintiff and the Defendant did not make every effort to understand the other party and overcome the conflict despite the conflict due to the difference of character, the Defendant’s female problem, etc.; and the Plaintiff did not respect or take care of the Plaintiff as his own position and deepened the conflict. The Plaintiff did not make every kind of work independently without respect or care; the Plaintiff did not make any effort to prevent verbal abuse, assault and assault against the Plaintiff, and make any situation suspected of misunderstanding, and thus, the marriage of this case was broken down on the Defendant’s primary responsibility. The Defendant asserted that the marriage of this case was broken down on the Plaintiff’s main responsibility without making best efforts to overcome the conflict. However, the Defendant did not have any duty to live, support, and cooperate with the Plaintiff for a prolonged period without making every effort to overcome the conflict. However, the evidence submitted to this court alone is insufficient to recognize that the primary responsibility of the dissolution of the marriage is one of the parties, and there is no evidence to acknowledge it otherwise.

3. Determination as to the claim for division of property

(a) Details about the formation and maintenance of property;

1) The Defendant established and operated a stock company which manufactures and sells industrial machinery on 1997, and is currently working as a representative director. The Plaintiff brought up children after marriage and takes exclusive charge of household affairs, while running the Defendant’s business.

2) On November 2009, the Defendant purchased the land A in KRW 60 million and KRW B in KRW 100 million.

3) On January 3, 2005, the Defendant lent 90 million won to Byung, concluded a contract establishing a right to collateral security with a maximum debt amount of KRW 100,000,000 with respect to land C, and completed the registration of establishment of the right to collateral security. The Defendant completed the registration of ownership transfer on May 2012 with respect to the said real estate on the ground of sale on the same date.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 7, 10 through 14, and the purport of the whole pleadings

1) Property subject to division: Attached Table 1 is as indicated in the “Attachment 1” list of property subject to division (the subject and value of property division shall be determined as of the date of closing of argument in this case: Provided, That in a case where consumption or concealment is easy as money and where there is a risk of overlapping if the standard point of time differs, it shall be presumed that the marriage has reached the failure as of December 31, 201, and the subject and value of division shall be determined by presumption that the amount of money has reached the failure as of December 31, 201. However, if the Defendant stated the value of the property by mutual consent with the Plaintiff, the value shall be determined

(ii) the value of the property to be divided;

A) Plaintiff’s net property: 39,878,347 won

B) Defendant’s net property: 398,139,923 won

C) Total amount of net property of the plaintiff and the defendant: KRW 438,018,270. Determination of the parties’ assertion

Attached Table 1 is as shown in the column of "the assertion and judgment of each party" in the attached Table 1 and the attached Table 2.

(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 above, and other factors such as the process and period of marital life, income, property, and economic power of the Plaintiff and the Defendant.

2) Methods of division of property: The Defendant paid to the Plaintiff money, 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, including the ownership, acquisition, and maintenance of the property subject to division, while devolving the property subject to division in the current name, and paying the shortage of the amount to be reverted to the Plaintiff according to the

3) Property division amount to be paid by the Defendant to the Plaintiff: KRW 179,130,000

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

Total net property 438,018,270 won x 50% = 219,09,135 won

② From the amount under paragraph (1) above, 179,130,788 won (=219,009,135 won - 39,878,347 won)

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

② The amount under the above paragraph is 179,130,000 won which deducts a little amount.

E. Sub-committee

Therefore, the defendant is liable to pay the plaintiff 179,130,000 won as division of property and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day when this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim for divorce and the defendant's counterclaim divorce are accepted for each reason, and the plaintiff's claim for consolation money and the defendant's counterclaim consolation money are dismissed for each reason, and the division of property is determined as above. It is so decided as per Disposition.

Presiding Judge, Park Jae-won

Judges Mobileho

Judges or Jae-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.