2016dwards 108542 Divorce, etc.

2016ddan1237 (Counterclaim), divorce, consolation money, etc.

A

B

C

May 2, 2017

August 8, 2017

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

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 20 million won as consolation money, 5% per annum from April 1, 2017 to August 8, 2017, and 15% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s remaining principal claim of consolation money and the defendant (Counterclaim plaintiff)'s counterclaim divorce and consolation money are dismissed, respectively.

4. The person with parental authority and the care of the principal of the case shall designate the Defendant-Counterclaim Plaintiff.

5. The Plaintiff (Counterclaim Defendant) shall pay 800,000 won per month to the Defendant (Counterclaim Plaintiff) for the child support of the principal of the instant case from November 23, 2016 to November 6, 2019.

6. The plaintiff (Counterclaim defendant) is entitled to interview the principal of the case at a place where the plaintiff (Counterclaim defendant) can be responsible from 17:00 to 21:00 on the fourth Saturday, and the defendant (Counterclaim plaintiff) must cooperate to the maximum extent possible so that the interview right can be achieved smoothly.

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

8. The above paragraphs 2 and 5 can be provisionally executed.

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced. The defendant shall pay to the plaintiff 40 million won as consolation money and 15% interest per annum from the day after the delivery of the copy of the claim and the cause of the claim of this case to the day of complete payment. The plaintiff shall be designated as the person with parental authority and the custodian of the principal of this case. The defendant shall pay to the plaintiff 500,000 won per month from the delivery date of the principal of this case to November 6, 2019.

Counterclaim: The plaintiff shall be divorced from the plaintiff. The plaintiff shall pay to the defendant 20,000,000 won as consolation money and 15% per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment. The defendant shall be designated as a person with parental authority and a custodian of the principal of this case. The plaintiff shall pay to the defendant 1,00,000 won per month from the day following the delivery of a copy of the counterclaim of this case to November 6, 2019 as the child support of the principal of this case.

1. Determination on the claim for divorce and consolation money

(a) Facts of recognition;

1) On April 3, 200, the plaintiff and the defendant reported their marriage and the principal of the case was placed under the chain.

(2) Circumstances of the marriage and the failure

가) D는 2016. 7. 27.경 피고에게 "난 진정 당신의 사람이 되고 싶어요!!! 사랑합니 다~ 죽을 때는 함께 손잡고 행복하게 갑시다!!! 7월 26일 늦은 밤 00가~"라는 내용이 포함된 문자메시지를 보내는 등 여러 차례 피고와 "좋아한다", "연애하는 기분이다", "내좋아하는 거다", "□□ 잘 거야", "사랑해" 등 내용이 포함된 문자메시지를 주고 받았다.

B) From September 10, 2016 to September 12, 2016, the Plaintiff appeared to have a witness of the Defendant at a restaurant. C) The Defendant sent D and 394 calls from November 29, 2016 to December 31, 2016.

3) At present, the Plaintiff and the Defendant did not make any effort for the recovery of relationship after separation.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 14 (including each number), the purport of the whole pleadings

B. Determination of the principal lawsuit and the claim of consolation money

1) Determination on a divorce claim

There are reasons under subparagraphs 1 and 6 of Article 840 of the Civil Code.

In full view of the fact that both the Plaintiff and the Defendant wanting divorce and that the marriage relationship between the Plaintiff and the Defendant seems to have deteriorated to the extent that they could not be recovered, it can be recognized that the marriage relationship between the Plaintiff and the Defendant has reached the

On the other hand, "illegal act of the spouse", which is defined as a cause for judicial divorce under Article 840 subparagraph 1 of the Civil Act, is a broad concept that includes the adultery and includes any unlawful act that does not reach the adultery but does not fulfill the duty of mutual assistance of the husband and wife (see Supreme Court Decision 87Meu5, 87Meu6, May 26, 1987). It is reasonable to see that the defendant committed a fraudulent act with D and D according to the above facts of recognition.

In addition, even though the conflict between the plaintiff and the defendant has deepened due to the above improper act, considering various circumstances such as the defendant's failure to make any effort to recover the relationship with the plaintiff, the main responsibility for failure of marriage is judged to be the defendant.

2) Determination on the claim for consolation money

Considering the circumstances such as the period of marriage, the degree of responsibility of the Plaintiff and the Defendant’s dissolution of marriage, the age, occupation, and economic power, the Defendant is obligated to pay to the Plaintiff consolation money at KRW 20,000,000 and the Defendant’s delay damages calculated by the rate of 5% per annum prescribed by the Civil Act from April 1, 2017 until August 8, 2017, the date following the delivery of a copy of the claim purport of the instant case and the application for modification of the cause of the claim.

C. Determination on the counterclaim divorce and the claim of consolation money

The Defendant filed for the payment of consolation money against the Plaintiff by asserting that the latter is mainly responsible for the failure of a matrimonial relationship due to unfair treatment, such as assaulting the Defendant. However, even when considering the evidence submitted by the Defendant, it is difficult to recognize that the failure of a matrimonial relationship is mainly responsible for the Plaintiff. Rather, as seen earlier, the main liability for the failure of a matrimonial relationship lies in the Defendant.

Therefore, the defendant's counterclaim claim for divorce is without merit, and there is no reason to claim the counterclaim consolation money based on this premise.

2. Determination on the claim for designation of a person with parental authority or a custodian, the claim for child support, and the visitation right (ex officio)

(a) A request for designation of a person with parental authority or custodian;

The defendant shall be designated as a person with parental authority and a custodian of the principal of this case in consideration of various circumstances shown in the pleadings of this case, such as the fact that the principal of this case is mainly raising, fostering environment, age, gender, and parenting situation.

(b) Claim for child support;

Considering the age and custody status of the principal of this case, the age, occupation, income, economic situation, and other all other circumstances of the Plaintiff and the Defendant, the Seoul Family Court, May 30, 2014, it is reasonable to determine that the Plaintiff paid 800,000 won monthly from November 23, 2016 to November 6, 2019, the day following the delivery date of a duplicate of the counterclaim to the Defendant from November 23, 2016, which is the day before the principal of this case reaches the age of majority.

C. The visitation right (ex officio) has the right to visitation right with the principal of the case unless it is contrary to the welfare of the principal of the case. In light of all the circumstances revealed in the arguments of the case, such as the age and parenting of the principal of the case, it is reasonable to determine the method of visitation right as described in Paragraph 6 of this Article for the emotional stability and welfare of the principal of the case.

3. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit shall be accepted within the extent of the above recognition, and the plaintiff's claim for solatium against the principal lawsuit shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed for lack of reasonable grounds. The defendant's claim for counterclaim divorce and solatium against the principal lawsuit and counterclaim shall be dismissed for lack of reasonable grounds. It is so decided as per Disposition with regard to the claim for designation of the person with parental authority and the person with custody

Judges Kim Gung-han