2016Dhap201435 (principal action) Divorce

2017Dhap59 (Counterclaims), divorce, etc.

A (1960s)

Busan Address

reference domicile Gyeong-nam

Law Firm Doz.

Attorney Lee In-bok

B. (1953 no longer than 1953)

Busan Address

reference domicile Gyeong-nam

May 25, 2017

June 29, 2017

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

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 10,00,00 as consolation money, 5% per annum from July 12, 2016 to June 29, 2017, and 15% per annum from the next day to the day of complete payment.

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

4. Defendant (Counterclaim Plaintiff) pays the Plaintiff (Counterclaim Defendant) a property division of KRW 103,00,000 to the Plaintiff (Counterclaim Defendant).

5. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) respectively for 30% of the costs of the lawsuit, plus counterclaims.

6. Paragraph 2 can be provisionally executed.

Main Action: (1) of the Disposition No. 1 and the defendant (hereinafter referred to as the "defendant") shall pay to the plaintiff (Counterclaim defendant; hereinafter referred to as the " plaintiff") 50,00,000 won as consolation money at the rate of 15% per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment, and shall pay 160,386,711 won as division of property.

Counterclaim: The plaintiff shall be divorced from the defendant by counterclaim. The plaintiff shall pay to the defendant 50,00,000 consolation money with 15% interest per annum from the day after the delivery of a copy of the counterclaim of this case to the day of complete payment.

1. Facts of recognition;

A. On April 22, 1985, the plaintiff and the defendant were legally married couple who completed a marriage report, and have two children who have come to full age under the chain of majority.

B. The Plaintiff, around 2009, has become aware of the Plaintiff and the Defendant’s act of inhumanity with the Plaintiff and the Defendant * as the Plaintiff became aware of the act of inhumanity with the Plaintiff and the Defendant’s marital relationship has deteriorated.

C. On December 11, 2013, the Defendant: (a) under the influence of alcohol, committed assault against the Plaintiff and his/her wife, such as verbal abuse, bucking with her husband and wife; (b) due to this day, the Defendant was arrested in the act of assault.

D. On May 2016, the Plaintiff was living in a separate manner with the Defendant until now.

E. On June 20, 2016, the Plaintiff filed the instant principal lawsuit, and the Defendant filed a counterclaim on March 30, 2017.

[Ground of recognition] Each period of Gap evidence Nos. 1 through 5, 9, 10 (including the number of each unit) and the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money against each principal lawsuit and counterclaim

A. Claim for divorce of principal lawsuit: there are reasons under Article 840(3) and (6) of the Civil Act.

B. Claim of consolation money: 10,000,000 won are recognized.

(c) Counterclaim divorce and claim of consolation money: None of each reason.

[Grounds for Determination]

(1) Recognition of marital failure: Various circumstances should be taken into account, such as the fact that both the plaintiff and the defendant desire to divorce, the loss of trust in each other, and the possibility of continuing the marital life in the future is not possible.

② The Defendant is mainly responsible for the failure of the marriage: Although the couple’s husband and wife have to understand and protect each other with difficulties, faith, and in human life, they are mainly responsible for the failure of the marriage relationship to the Defendant, which caused the loss of the Plaintiff’s desire to maintain the marriage by using verbal abuse and assault suspected of the Plaintiff (in response, the Defendant asserts that frequent unauthorized leave of absence of permission by the Plaintiff is the cause of the failure of the marriage of this case, but the evidence submitted to this court alone is insufficient to acknowledge the allegation, and there is no other evidence to acknowledge it).

③ The Defendant’s duty to pay consolation money to the Plaintiff: The Defendant is obligated to pay consolation money to the Plaintiff for mental distress caused by the failure of the marriage. The amount is set at KRW 10,00,000, taking into account the following circumstances: the cause and degree of responsibility of the Plaintiff due to the failure of the marriage; the period of marriage of the Plaintiff and the Defendant; and the period of marriage of the Plaintiff and the Defendant; and the occupation and economic power as seen earlier; and

C. Sub-determination

Therefore, the Plaintiff and the Defendant are divorced by the principal lawsuit. The Defendant is obligated to pay the Plaintiff the solatium amounting to KRW 10,00,000 and the marriage relation amounting to KRW 10,00,00, and as sought by the Plaintiff, 5% per annum under the Civil Act from July 12, 2016 to June 29, 2017, which is the day following the day of delivery of the copy of the complaint of this case, to June 29, 2017, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination on the claim for division of property in the principal lawsuit

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

During the marriage period, the defendant operated a gambling manufacturing factory, and the plaintiff was in full charge of raising domestic affairs and children during the marriage period, while helping the above factory work.

[Reasons for Recognition] The evidence mentioned above and the purport of the whole pleading

(b) Property and value to be divided;

1) Property to be divided: Attached Table 1, as stated in the list of property to be divided (the base point of time for the property and value to be divided was determined around June 20, 2016, which is the date of filing the lawsuit in this case by the Plaintiff).

2) The value of the property to be divided;

A) Plaintiff’s net property: 84, 136, 921 won

B) Defendant’s net property: 384, 908, 843 won

C) Total amount of net property of Won and the defendant: 469,045, 764 won

[Ground of recognition] Each entry in Gap evidence Nos. 12 through 14, the defendant-dong Saemaul Bank of Korea in this Court, the IBK company, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, the defendant-appellant, and the defendant-appellant's each

C. Judgment on the parties’ assertion

Attached Table 1 is as shown in the column of each party's assertion and judgment in the annexed Table 1's Schedule of Property Specifications and Attached Table 2's Non-Recognized Property Statement.

(d) Ratio and method of division of property;

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

[Ground of 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, and other circumstances shown in the argument of this case, such as the process, period, and reason why the failure of marriage is caused, the age of the Plaintiff and the Defendant, occupation, and income activity.

2) The method of division of property: Taking into account the parties’ intentions, the ownership, the process of acquisition and maintenance of the property subject to division as seen earlier, and the circumstances revealed in the pleadings of the instant case, the part of the amount to be reverted to the Plaintiff according to the said division ratio, which ought to be reverted to the Plaintiff according to the said division ratio, shall be determined that the Defendant pays to the Plaintiff money.

3) Property division amount to be paid by the Defendant to the Plaintiff: KRW 103,00,000

【Calculation Form】

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

Total net property 469,045, 764 won x 40% = 187, 618, 305 won (if the amount is less than KRW 469,00)

(2) The amount calculated by subtracting the Plaintiff’s net property from the money in the above paragraph (1).

103, 481, 384 won ( = 187, 618, 305 won - 84, 136, 921 won)

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

② The amount set forth in the above paragraph may not be less than 103,00,000 won

E. Sub-determination

Therefore, the defendant is obligated to pay 103,000,000 won to the plaintiff as division of property.

4. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit shall be accepted for the reason that it is reasonable, and the remaining claim for consolation money shall be dismissed for the reason that it is without merit. The defendant's counterclaim for divorce and consolation money shall be dismissed for each reason, and the division of property shall be determined as above. It is so decided as per Disposition.

Judges Kim Jong-soo

Judges Jeong-hee

Judges Cho Jae-sung

Attached Table 1

Detailed statement of Divided Property

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

Attached Table 2

Statement of Unauthorized Property

A person shall be appointed.