[1] Whether an honorary retirement allowance is subject to division of property (affirmative with qualification) in a case where one of the married couple, at the time of the closure of argument in a divorce lawsuit, takes a voluntary retirement and receives money in addition to the ordinary retirement allowance, in addition to the ordinary retirement allowance (affirmative with qualification)

[2] The case affirming the judgment below holding that, in case where Gap had been employed for 28 years after her marriage with Eul and had left his office before the date of closing argument in the first instance court of a divorce lawsuit and received money in the name of an honorary retirement allowance, the money in the name of an honorary retirement allowance shall be included in the property subject to

[1] The property subject to division under the premise of a judicial divorce and its amount shall be determined on the basis of the date on which the arguments are concluded at the fact-finding court in a divorce lawsuit. In a case where one of the married couple works at the workplace at the time of the closure of the arguments at the fact-finding court in a divorce lawsuit and voluntarily retires and receives money in the name of honorary retirement allowance apart from ordinary retirement allowances, even though the honorary retirement allowance has a strong nature of compensation for loss of income that can continue to work until the retirement age or for the payment of expenses to obtain new occupation, if the other spouse has contributed to the requirement of continuous service, the entire honorary retirement allowance may be considered as the subject of division of property: Provided, That the court may take into account the degree that the other spouse has contributed to the requirement of continuous service, the remaining period from the date on which the arguments at fact-finding court in a divorce lawsuit to the retirement age, etc.

[2] The case affirming the judgment below which held that, in case where Gap, who was employed by Byung for 28 years after her marriage with Eul, retired before the date of closing argument in the first instance court of a divorce lawsuit and received money in the name of an honorary retirement allowance, Eul's internal assistance to enable Byung to work in Byung company until her voluntary retirement, shall be deemed to have contributed, and thus, money in the name of an honorary retirement allowance shall be included in the property subject to division.

[1] Article 839-2 (2) of the Civil Act / [2] Article 839-2 (2) of the Civil Act

[1] Supreme Court Decision 9Meu906 Decided September 22, 2000 (Gong2000Ha, 2225) Supreme Court Decision 2009Meu4297 Decided April 15, 2010 (Gong2010Sang, 925)

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Gwangju District Court Decision 2008Reu676, 683 Decided June 25, 2009

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. The property subject to division under the premise of a judicial divorce and its amount should be determined on the basis of the date on which the fact-finding court’s arguments in a divorce lawsuit are closed (see, e.g., Supreme Court Decisions 9Meu906, Sept. 22, 2000; 2009Meu4297, Apr. 15, 2010). In a case where one of the married couple, at the time of the closure of the arguments in a divorce lawsuit, voluntarily retires and has already received money in the name of an honorary retirement allowance in addition to ordinary retirement allowances, even though the honorary retirement allowance has a strong nature of compensation for the loss of income that can continue to work until the retirement age or expenditure for obtaining new occupation, if the other spouse’s cooperation has contributed to the other spouse’s continuous service requirement, the amount of voluntary retirement payment can be entirely considered as the property division. However, the court may consider the degree of other spouse’s contribution to the requirements for continuous service lawsuit and the remaining period from the date of closing the arguments in the fact-finding lawsuit to the retirement age.

2. According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below determined that ① the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") were legally married couples who completed the marriage report on August 18, 1978; ② the plaintiff has almost been in exclusive charge of domestic and child care after marriage, and both the plaintiff has raised living expenses from around 1993 to May 2, 1997 by taking a double punishment, such as three Deputy Day, on-site labor, etc.; from around May 1, 1997 to December 2, 2007, the plaintiff has operated a restaurant, such as a simple restaurant and a general Chinese-type store, etc., from around 28 years after marriage, and ③ the defendant has received honorary retirement allowances from the court of first instance to July 25, 2007.

In light of the above legal principles and facts, such judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the subject of property division as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)