2016dwards 109316 Divorce, etc.

A

1.B

2.C

1.D

2.E

August 29, 2017

September 26, 2017

1. A and B shall be divorced.

2. A:

A. B pays 20,00,000 won as consolation money, and 5% per annum from November 17, 2016 to September 26, 2017, and 15% per annum from the next day to the day of complete payment.

B. C jointly with B, pays 10,000,000 won out of the money set forth in the above A, and 5% per annum from November 25, 2016 to September 26, 2017, and 15% per annum from the next day to the day of full payment.

3. A’s remaining claim for consolation money is dismissed.

4. B pays to A 8,00,000 won as division of property and 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

5. Designation B of person with parental authority and care of the principal of the case; and

6. A shall pay B the 500,000 won per month from September 1, 2017 to September 14, 2027 with the child support of the principal of the case, and 250,000 won per month from the next day to November 20, 2030.

7. A may visitation the principal of the case before the principal becomes adult as follows:

(a) schedule;

1) Secondly, every month, from 17:00 Triday to 14:00 each day.

2) One-day stay determined in consultation with A and B during the period of drillings and vacations.

3) Seven days after consultation between A and B during the summer and winter vacation period of the principal of the case.

(b) Method: A means that an interview is conducted at a place where A takes the residence of the principal of the case and may take charge of the principal of the case, and B after the interview is made at the visitation place;

8. The costs of lawsuit shall be borne by each person;

9. Paragraphs 2 and 6 of this Article may be provisionally executed.

The disposition No. 1, B, and C jointly pay A the amount calculated by applying the rate of 50,00,000 won as consolation money and 15% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment. B shall pay A the amount calculated by applying the rate of 41,078,216 won as division of property and the rate of 5% per annum from the day following the day after the judgment of this case becomes final and conclusive to the day of complete payment. B shall be designated as a person with parental authority and custodian of the principal of this case. B shall be designated as a person with parental authority and custodian of the principal of this case. B shall be designated as a person with child support of the principal of this case from October 2016 to November 20, 2025, the amount of 1,000,000 won per month from the next day to November 20, 2030 as the last day of each month.

1. Determination on the claim for divorce and consolation money

(a) Facts of recognition;

1) Marriage report and child

A and B reported the marriage on September 12, 2008, and made the case principal under the chain.

2) Circumstances of the marriage and the failure

A) From around 2010, A had lived in △△△, and B had lived with the principal of the case in Daegu.

B) B came to know of C around June 2016, and C performed an act in the beauty art room operated by B, such as using B and B’s bucks.

C) A confirmed CCTV of the above beauty room, and filed the instant lawsuit by becoming aware of the aforementioned facts.

(iii) the present situation;

A and B have not made any effort for the recovery of relations after the filing of the instant lawsuit.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 5 (including each number), the purport of the whole pleadings

B. 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 A and B wishing to divorce and that the marriage relationship between A and B seems to have deteriorated to the extent that it is impossible to recover, it can be recognized that the marriage between A and B has reached the failure.

Meanwhile, according to Article 840 subparagraph 1 of the Civil Act, the "illegal act of the spouse", which is defined as a cause for judicial divorce, includes a broad concept that includes the adultery, but does not reach the adultery and includes any unlawful act that does not faithfully fulfill the marital duty (see Supreme Court Decision 87Meu5, 87Meu6, May 26, 1987). It is reasonable to view that the defendants committed a fraudulent act according to the above facts of recognition.

In addition, even though the conflict between A and B has deepened due to the above misconduct in B, considering the circumstances such as that B did not make any effort to recover the relationship with A, it is judged that B is the principal responsibility for the failure of marriage relationship.

C. Determination on the claim of consolation money

1) Claim for consolation money against B

Considering the circumstances such as the marriage period between A and B, the cause of marriage and the degree of responsibility, age, occupation, and economic power, B is obligated to pay damages to A a consolation money of KRW 20,000,000 and damages to B from November 17, 2016 to September 26, 2017, which is the date the judgment of this case was rendered, as long as it is reasonable for B to dispute over the scope of its duty of performance, the amount of damages shall be paid at the rate of 5% per annum as prescribed by the Civil Act and the amount of damages calculated at the rate of 15% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

2) Claim for consolation money against C

A) Occurrence of liability for damages

In principle, a third party’s act of infringing on or interfering with a couple’s communal life falling under the essence of marriage and infringing on a spouse’s right as the spouse, thereby causing emotional distress to the spouse, which constitutes a tort (see, e.g., Supreme Court en banc Decision 2011Meu2997, Nov. 20, 2014).

According to the above facts of recognition, it is reasonable to see that C's improper act committed with B and his spouse, thereby causing the failure of the A's matrimonial relationship. It is obvious in light of the empirical rule that A suffered severe mental pain, and therefore C is liable to compensate for mental damage.

B) Scope of liability for damages

Furthermore, with respect to the amount of consolation money, in light of all the circumstances revealed in the proceedings of the present case, including the health team, the reasons and period for which the Defendants met, the degree of misconduct, the marriage period between A and B, the reason why the failure occurred, and the circumstances after the occurrence of fraudulent act, it is reasonable to determine the amount of consolation money that C shall pay to A as KRW 10,00,000.

C) Sub-determination

Therefore, C, in collaboration with B, has a duty to pay a solatium amounting to KRW 10,00,00 as consolation money and a copy of the complaint of this case from November 25, 2016 to September 26, 2017, which is the day following the date of the adjudication of this case, C, which is subject to dispute over the scope of its duty of performance, to the extent of its duty of performance, and to pay a yearly amount of KRW 5% per annum calculated by each of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

2. Determination as to the claim for division of property

(a) Property and value to be divided;

1) Property to be divided: It is as shown in the detailed statement of the attached property to be divided (property of less than 100,000 won shall be excluded from the property to be divided).

2) The value of the property to be divided;

(a) Net property A: 23,108,426 won;

(b) Net property B: 54,845,270 won;

(c) Total net property A and B: 7,953,696 won;

[Reasons for Recognition] Gap evidence Nos. 9 through 12, Eul evidence No. 5, this court * the result of the order to submit financial transaction information to the insurance company * the purport of the whole pleadings

3) Determination as to the allegations A and B

A) B received retirement allowances of amounting to KRW 10,00,000, which is the subject of division of property. However, the evidence submitted by B alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, in full view of the purport of the statement and the whole argument by subparagraph 12, A can only be recognized as purchasing a passenger car in the name of A subject to division of property by receiving KRW 8,266,926 as retirement allowances around May 17, 2016 and receiving KRW 8,266,926 as retirement allowances. Thus, the above argument by B is without merit.

B) B asserts that cash worth KRW 30,000,000 possessed by A is also subject to division of property, but the evidence submitted by B alone is insufficient to accept it, and there is no other evidence to acknowledge it. Thus, the above argument by B is without merit.

C) Since A spent all of KRW 9,118,426 transferred from B as living expenses, etc., it is not subject to division of property. However, the evidence submitted by A alone is insufficient to recognize that the said money was spent for the common life of both spouses, and there is no other evidence to recognize it. Thus, A’s above assertion is without merit.

D) B argues that the market price of a passenger car held by A reaches KRW 15,000,000, and that the market price of a passenger car held by B is KRW 9,000,000. However, the evidence submitted by B alone alone is insufficient to recognize it, and there is no other evidence to acknowledge it, the above argument by B is without merit.

E) B asserts that B’s obligation to borrow KRW 10,00,000 to the mother of B is subject to division of property. However, the evidence submitted by B alone is insufficient to recognize B as having borrowed the said money from the mother of B, and there is no other evidence to acknowledge it. Thus, the above assertion is without merit.

(b) The ratio and method of division of property;

1) Property division ratio

In consideration of the fact that the marriage period and age of A and B, and the revenue acquired by B during the marriage period have become the main source of the formation of joint property of the couple, it shall be recognized as A 40% and B 60%.

2) Method of division of property

Considering the circumstances revealed in the arguments in this case, such as the form of the property subject to division, the name of ownership, and the situation of use, it is reasonable for B to determine the active and passive property in the name of A and B as it is in the current name and the responsibility of each party, and to pay KRW 8,00,000,000 according to the following formula to A in cash.

3) Property division amount to be paid by B to A

【Calculation Form】

Property division ratio of X 40% of the aggregate of net property A and B 7,953,696 won - 23,108,426 won of the net property amount of A = 8,000,000 won where the amount of net property exceeds 8,073,052 won.

C. Sub-committee

Therefore, B is free to pay to A 8,00,000 won as division of property and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day immediately after the judgment of this case is finalized to the day of complete payment.

3. Determination on a claim for designation of a person with parental authority or a custodian, a claim for child support, and an interview right (ex officio)

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

It is reasonable to designate B as a person with parental authority and a custodian of the principal in consideration of various circumstances shown in the arguments of this case, such as the fact that B mainly raises the principal of this case, the marital life and distress of A and B, the background of the failure, the awareness of custody, the age of the principal of this case, gender, and the situation of custody.

(b) Claim for child support;

Considering the age and custody status of the principals of this case, the age, occupation, income, economic situation, and other counter-assessment circumstances of the principals of this case, and the Seoul Family Court established and announced May 30, 2014, the Seoul Family Court shall make it reasonable to pay A KRW 250,000 per person per month of the principal of this case from September 1, 2017 to the date the principal of this case reaches each adult age.

(c) Interview ex officio;

As long as it does not go against the welfare of the principal of the case, the non-nurt-child has the visitation right with the principal of the case, taking into account 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 visitation right as described in Paragraph 7 of the Disposition.

4. Conclusion

Therefore, A’s claim for divorce is accepted on the grounds of the above recognition, and the claim for consolation money is accepted on the grounds of the above recognition, and the remainder is dismissed on the grounds of the reason. It is so decided as per Disposition with regard to a claim for division of property, designation of a person with parental authority or custody, claim for child support, and visitation right.

Kim Jong-chul

A list of divided properties;

A person shall be appointed.