2010Dhap000 Divorce and division of property, etc.

Article 00 (Application)

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

1. Kim 00

2. Kim XX

Defendants Law Firm 000, Attorneys 000

April 13, 2011

June 15, 2011

1. The plaintiff and defendant KimO shall be divorced.

2. The plaintiff, the consolation money.

(a) Defendant KimO shall pay 300,000,000 won with 5% per annum from February 6, 2010 to June 15, 201, and 20% per annum from the next day to the day of full payment;

B. Defendant Kim XX shall pay 100,000,000 of the money set forth in the above paragraph (a) to Defendant KimO and each of them, and 5% per annum from February 6, 2010 to June 15, 201, and 20% per annum from the next day to the day of full payment.

sub-payment.

3. The plaintiff's remaining claims for consolation money and division of property against the defendant Kim 00, and the remaining claims against the defendant Kim XX are dismissed.

4. Defendant KimO paid 34,000,000 won to the Plaintiff as child support in the past.

5. Of the costs of lawsuit, 2/3 of the part arising between the Plaintiff and Defendant Kim 00 shall be borne by the Plaintiff, and the remainder by Defendant Kim 00, and 1/2 of the part arising between the Plaintiff and the Defendant Kim Kim Kim XX, respectively.

6. The above paragraphs 2 and 4 can be provisionally executed.

The order of Paragraph (1) and the defendant Kim Jong shall pay to the plaintiff 1 billion won as 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 complete payment. The defendant Kim XX shall pay to the plaintiff 200 million won as 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 complete payment. As to the plaintiff's division of property and 1/2 interest of the real estate listed in Paragraph (1) of the attached list of Paragraph (2) as to the plaintiff's 1/2 interest of the defendant KimO among the real estate listed in Paragraph (3) of the attached list of Paragraph (3) of the same Table, the registration procedure for transfer of ownership on the part of the real estate listed in Paragraph (3) of the same list of Paragraph (3) of the same case shall be implemented with respect to 1/2 of the share of the corporation as a child support in the past.

1. Determination on the claim for divorce and consolation money

(a) Facts of recognition;

(1) Marriage and children: on August 20, 1980, married children and children under the reporting of marriage and under the chain of 1980.

(2) Circumstances of marriage and breakdown

(A) Defendant Kim 00 demanded divorce from the Plaintiff or the Plaintiff in 1994 while engaging in illegal conduct with many women during a married life, but did not comply with the Plaintiff. Defendant Kim 00 withdrawn around January 1995.

(B) Around May 195, Defendant KimO filed a divorce lawsuit against the Plaintiff with the Sung-nam branch of the Suwon District Court and received a favorable judgment as a result of service by public notice. On September 6, 1996, Defendant KimO reported the marriage with the Y.

(C) On November 1996, the Plaintiff obtained a certified copy of the family register to submit to the school of his father and became aware of the above divorce judgment, and the said judgment of divorce was revoked by filing an appeal to the Suwon District Court.

(D) The Plaintiff filed a claim for the revocation of marriage with the Seoul Family Court against Defendant Kim 00 and Park Jong, with the Seoul Family Court. However, from February 1997, Defendant Kim O filed a divorce lawsuit against Defendant Kim XX and the deceased, and Park XX upon having filed a criminal complaint against the Defendants as a crime of adultery. In the above case, the divorce conciliation was concluded on February 12, 1998 between Defendant Kim 00 and Park XX. The Plaintiff voluntarily withdrawn the above application for conciliation.

(E) On the other hand, on March 18, 1998, Defendant KimO reported marriage with Defendant Kim XX, and the plaintiff filed a divorce lawsuit against the Defendants against the Defendants, the Seoul Family Court**************** on March 25, 199, and the marriage between the Defendants became final and conclusive on April 18, 199 and conclusive on April 18, 199.

(3) Current situation

(A) Defendant KimO did not pay the Plaintiff’s living expenses since January 1, 1995, and did not attend the marriage ceremony of his father and wife.

(B) Notwithstanding the judgment of revocation of marriage as described in the above (2) (e), the Defendants are living together until now.

(4) Period of separate residence: From January 1995, about 16 years to the present.

[Reasons for Recognition] The substantial facts in this Court, Gap evidence Nos. 1 through 3, 5 through 7, 15 (including each number), Gap evidence No. 17-2, 3, family affairs investigator's investigation report, and the purport of the whole pleadings

B. Determination

(1) Divorce: there are reasons under Article 840(1) and (2) of the Civil Act

【Reasons for Determination】

① Recognition of the failure: Recognition of the failure of the marital relationship between the Plaintiff and Defendant Kim O, taking into account the various circumstances, including the fact that the above recognition, the separate period of the Plaintiff and Defendant Kim 00 is at least 16 years, and the marital relationship between the Plaintiff and Defendant Kim O seems to have deteriorated to the extent that they

② The fundamental and principal responsibility for failure is against Defendant KimO: The above facts of recognition, in particular, considering the following circumstances, such as: (a) Defendant KimO’s withdrawal from home and repeated the living together and marriage report with Defendant Kim XX, waiting for returning home under Defendant Kim00, leaving the Plaintiff, leaving the Plaintiff, leaving the Plaintiff, leaving the duty to support, leaving the Plaintiff abandoned the Plaintiff in bad faith, and neglecting the duty to support.

(2) Consolation money

(A) Defendant KimO: from February 6, 2010 to June 15, 2011, the date following the delivery of a copy of the complaint of this case sought by the Plaintiff as consolation money to the Plaintiff, Defendant KimO is obligated to pay damages for delay calculated at each rate of 5% per annum under the Civil Act and 20% 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.

[Reasons for Determination] The causes of and degree of responsibility for the dissolution of marriage, the period of marital relationship between the Plaintiff and Defendant Kim, and the age and economic power of the Plaintiff and Defendant Kim Kim 00

(B) Defendant Kim XX: Defendant Kim XX is obligated to pay to the Plaintiff damages for delay calculated by the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from February 6, 2010 following the delivery day of a copy of the complaint of this case sought by the Plaintiff with respect to the amount of KRW 100,000,000,000 from February 6, 201 to June 15, 2011.

[Grounds for determination] The above facts of recognition, in particular, Defendant Kim XX, as described in the above paragraph (a) (2) (e), have maintained a liaison relationship with Defendant Kim 00 for a period of not less than ten years even after the marriage between the Defendants was revoked in 1999, and has provided a critical cause for the failure of the marriage between the Plaintiff and the Defendant Kim Kim.

2. Determination on the claim for division of property

A. The assertion

The plaintiff asserts that since "the real estate in the separate sheet No. 1 (1) of this case does not exceed 1/2 shares in the name of defendant KimO concerning "the real estate in the name of defendant KimO", "the real estate in the name of defendant KimO", "the real estate in paragraph 2 (2) of the same list in the name of defendant KimO", "the real estate in paragraph 3 of the same list in the name of defendant KimO" is the common property formed in the marriage of the plaintiff and defendant KimO, the defendant KimO, as division of property, has the obligation to perform the registration procedure for ownership transfer as stated in the claim regarding the first or third real estate in this case.

B. Determination

If the property acquired after the separation for a long time in the division of property at the time of judicial divorce, it cannot be the subject of division of property unless it is based on the tangible and intangible resources formed by mutual cooperation between the two parties before the separation. According to the statements of the Supreme Court No. 96Meu1397, Jun. 11, 199; No. 4; and No. 14 of No. 14, Dec. 14, 199, the property acquired after the separation can be recognized as the property acquired in 2003 and 206, respectively, after the KimO was separated from the plaintiff, and No. 3 of this case was owned by the defendant KimO. Even if the third part of this case was owned by the defendant KimO, the plaintiff's claim for division of property against the plaintiff and the defendant 204, respectively, can not be recognized as the property acquired by the plaintiff and the defendant 204, respectively.

3. Judgment on the claim for past child support

(a) Child support in the past: 500,000 won per month for about 68 months from January 1, 1995 until August 31, 2000, which is the day before his/her adult age reaches, and 34 million won in total;

[Ground for determination] Taking into account various circumstances, including the Plaintiff and Defendant KimOO’s economic ability, etc., when it is evident that the Plaintiff has disbursed considerable expenses for training expenses, expenses for purchasing food, and clothing in order to care for his/her married, etc.

B. Determination on the assertion of extinctive prescription

(1) The argument

Defendant Kim 00 asserts that the extinctive prescription of the Plaintiff’s claim for the above past child support has expired.

(2) Determination

The right to seek payment of child support is limited to the abstract claim that "the other party has the right to claim the apportionment of child support" before the contents and scope of the specific claim are determined by the adjudication of the family court. It shall be deemed that a right to claim payment equivalent to the specific amount takes place only through an agreement between the parties or a trial in which the family court determines the scope, etc. of the relevant child support in discretion and form. The same applies to a claim for future child support as well as a claim for past child support. Therefore, since it cannot be deemed that there is a situation where the right can be exercised before the specific contents and scope of the claim are determined by an agreement between the parties or by a family court, the extinctive prescription period is not run. Thus, the defendant Kim 00's claim for extinctive prescription does not have merit without any further review.

4. Conclusion

If so, the plaintiff's divorce claim against defendant KimO and consolation money within the above recognition scope, claims against defendant Kim XX are justified, respectively. The plaintiff's remainder of consolation money claim against defendant Kim 00 and property division claim against the defendant Kim XX, and other claims against the defendant Kim XX are dismissed for lack of reasons. The above claim against the defendant Kim O for the past child support claim against defendant Kim O shall be determined as above.

Chief Judge Park Jong-hwan

Judges fixed-term

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