Plaintiff (Attorney Park Poe-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm CSS, Attorneys Park Sang-ok, Counsel for the defendant-appellant)

The principal of the case and one other

October 14, 2009

Seoul Family Court Decision 2007Dhap7195 Decided April 30, 2009

1. The part concerning the claim for division of property among the judgment of the court of first instance, and the part concerning the claim for designation of a person with parental authority and custodian shall be

A. The defendant shall pay to the plaintiff 480 million won with 5% interest per annum from the day following the day when the judgment of this case became final to the day of full payment.

B. The plaintiff shall be designated as a person with parental authority and guardian of the principal of the case.

2. The plaintiff's remaining appeal and the defendant's appeal are dismissed.

3. The costs of appeal shall be five minutes and two of them shall be borne by the plaintiff, and the remaining three of them shall be borne by the defendant, respectively.

1. Purport of claim

① The Plaintiff and the Defendant shall be divorced. ② The Defendant shall pay to the Plaintiff the amount of consolation money, KRW 50 million, and 20% interest per annum from the day following the delivery of a copy of the instant complaint to the day of full payment. The Defendant shall pay the Plaintiff the amount of KRW 2 billion and the amount of KRW 5% interest per annum from the day on which the judgment of this case became final to the day of full payment. ③ The Plaintiff is designated as the person in parental authority and custodian of Nonparty 1, and the Defendant shall pay the Plaintiff KRW 100 per month from the day following the delivery of a copy of the instant complaint to Nonparty 1’s child support until December 19, 208; KRW 100,000 per month from the same day to June 26, 2011; KRW 2,000 from the same day to May 3, 2017 from the same day to the end of each month (the Plaintiff’s claim for consolation money is reduced to KRW 250,500,000 won per month).

2. Purport of appeal

A. The purport of the plaintiff's appeal is to revoke the part of the judgment of the court of first instance against the plaintiff, and the defendant shall pay the plaintiff 50 million won consolation money and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment, and shall pay 1,574,000 won division of property and 5% interest per annum from the day of full payment to the day of full payment.

B. Purport of defendant's appeal: Revocation of the part against the defendant among the judgment of the court of first instance, and the corresponding plaintiff's claim is dismissed.

1. Determination on the claim for divorce and consolation money

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with Article 12 of the Family Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on the claim for division of property

A. The reasoning for the court’s explanation on this part is as follows. The property value of the right to sell this case under the annexed sheet of Divided Property List is re-calculated for the following reasons. The part of the judgment of the court of first instance concerning the part in which the Defendant sold the right to sell this case and partly repaid the obligation is identical to the corresponding part of the judgment of the court of first instance. Thus, this part is cited in accordance with Article 12 of the Family Litigation Act and the main sentence of

B. Parts of the modification or supplementation

(1) Determination of property value of the sales right of this case

In the first instance trial, the Defendant was the person who disposed of the instant sales right in KRW 1.3 billion, and the Plaintiff asserts that the value of the instant sales right is KRW 1.3 billion. Thus, the value of the sales right in this case is reasonable to determine KRW 1.3 billion (the Defendant used KRW 1,271,089,378 out of the sales right 1.3 billion in the amount of the sale right in this case as repayment and tax payment, so the amount should be excluded from positive property. However, among the money used by the Defendant, the remainder excluding the Defendant’s repayment of KRW 495,036,00 out of the amount used by the first instance court, which is recognized as the Defendant’s passive property, is based on evidence submitted by the Defendant, it is difficult to view that the Defendant’s repayment of the obligation it claimed as the Defendant’s repayment of KRW 804,964,400 except for the above bank loans is currently owned by the Defendant and is calculated as the Defendant’s active property, and thus, it is calculated as the Defendant’s obligation corresponding to the above portion of the loans.

(2) Additional determination

On March 2006, the Defendant paid KRW 40 million to the Plaintiff. On September 9, 2006, the Defendant loaned KRW 36 million to the Plaintiff as collateral for the instant room housing and unregistered children’s housing, and on January 2007, 2006, KRW 20 million was arbitrarily used for the Plaintiff’s sale of stocks embezzled by the Plaintiff. Since the Defendant subrogated for KRW 100 million for the Plaintiff’s use of the card, the said money should be calculated as the Plaintiff’s active property or included in the Defendant’s small property. However, the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff received or used the said money as alleged by the Defendant, and it is difficult to recognize that the Plaintiff was currently in possession of the money, this part of the Defendant’s assertion is not acceptable.

(b) Property subject to division of property: The same shall be the same as the evidence of the first instance, unless the relationship of evidence is indicated separately;

① Plaintiff’s net property: 30,000,000 won

(2) The defendant's net property: 1,250,089,622 won

③ Total net property of the Plaintiff and the Defendant: KRW 1,280,089,622

(d) Ratio and method of division of property;

(1) Division ratio: Plaintiff 40%, Defendant 60%

(2) Division method: The defendant pays the division of property to the plaintiff

(c) Property division amount: 480 million won and delay damages thereon;

【Calculation Form】

① The Plaintiff’s share according to the division rate of property among the net property of the Plaintiff and the Defendant

1,280,089,622 won x 40% = 512,035,848 won x 512,035,848 won

(2) Amount under paragraph (1) after deducting the Plaintiff’s net property.

512,035,848 won - 30,000,000 = 482,035,848 won

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

② The amount of the above paragraph is 480,000 won, less than the amount of the said paragraph.

E. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff 480 million won and delay damages for division of property.

3. Authority for designation of a person with parental authority, a child support, and an visitation right.

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance except for changing the plaintiff to "the designation of the person in question as the person in parental authority and the person in parental authority and the person in custody of the person in question, in consideration of the age of the person in question, the person in question is currently living together with the plaintiff, and a large number of people are sending them to the defendant," and other various circumstances indicated in the records. Thus, this part of the judgment of the court of first instance is cited as it is in accordance with Article 12 of the Family Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

Therefore, the plaintiff's claim for divorce of this case shall be accepted on the ground of the reason, and the claim for consolation money shall be dismissed on the ground of the reason, and the above provision shall be reasonable as to the claim for division of property, the designation of a person with parental authority and a child support, and the visitation right. As such, the remaining part of the judgment of the court of first instance except for the claim for division of property, the designation of a person with parental authority and a child career is justifiable, and as such, the division of property, the designation of a person with parental authority and a child career shall be changed as above.

[Attachment]

Judges Sung Pung-tae (Presiding Judge)