Plaintiff (Attorney Kim Sang-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Chungcheong, Attorneys Hong-ho et al., Counsel for the defendant-appellant)

June 8, 2004

Seoul Family Court Decision 2003Dhap363 delivered on September 3, 2003

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the first instance court is revoked. The defendant shall be divorced with the plaintiff. The defendant shall pay the plaintiff a solatium of KRW 100,000,000 with 25% interest per annum from the day following the delivery of a copy of the complaint to the day of complete payment. The defendant shall implement the registration procedure for transfer of ownership based on the division of property as to 1/2 shares of each real estate listed in the separate sheet as property division to the plaintiff.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of the court in this case is as follows, except for the addition of the plaintiff's assertion and the judgment of the court of first instance as to this case, and therefore, it is consistent with Article 12 of the Family Litigation Act and Article 420 of the Civil Procedure Act.

The plaintiff asserts that the defendant rapes the non-party 1 (the age of 20 at the time) who is the first wife around July 1974, and rapes the non-party 1 (the age of 19), who is a wife at around December 1975 (the age of 19), and thereby, the marital life of the plaintiff and the defendant was broken down. Thus, it is difficult to believe that the statement of the evidence No. 25 and the result of the plaintiff's personal examination are consistent with the above alleged facts, and there is insufficient evidence to acknowledge the above alleged facts, and even according to the plaintiff's argument itself, the plaintiff does not have any other evidence to acknowledge the above facts, if the plaintiff is aware of the rape as above, in light of all the circumstances, such as the situation that the defendant's family life had been broken down with the defendant, or there is no evidence to take legal measures, it cannot be concluded that the above facts have broken down. Accordingly, the plaintiff's argument is without merit.

On the other hand, in preparation for the case where the claim for divorce, etc. is not accepted, the Plaintiff, as a preliminary in the first instance, sought registration of transfer due to the termination of title trust with respect to one-half shares of each of the real estate listed in the separate sheet, and then seek the plaintiff and the defendant to divide the price by one-half of each of the above real estate, under the premise that the legal principles on the termination of a title trust agreement between the couple or the provisions on the division of the public property of the couple under Article 829(3) of the Civil Code can be applied by analogy to the case where there is no marital property agreement before marriage.

However, the claim for the registration of transfer or the claim for the division of common property of both spouses, which is not the object of the marital property agreement, based on the termination of trust between husband and wife, cannot be tried jointly with the civil case and the family case, and the defendant is dissatisfied with the above preliminary claim on the ground that there is no correlation with the case. In the appellate court's acceptance of the above preliminary claim, there is also concern that the above preliminary claim may infringe on the defendant's interests at the court's instance, so this court will not accept the plaintiff'

2. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Choi Jin-hun (Presiding Judge)