209Dhap2692. (Lawsuits) Compensation for damages

2010Dhap210 (Counterclaim) Compensation for damages

강■ ( xxxxxx - XXXXXXX )

주소 부산 해운대구 이동 & & & ♥♡ 씨동 호

-00 square meters 00 square meters -

Attorney Kim full-time, Counsel for defendant-appellee

김○ ( xXXXXX - XXXXXxx )

주소 부산 해운대구 이동 _ _ ♣♣♣♣♣♥♡ 씨동 _ 호

Standard place of registration Kim Jong-hwan, 00 Eup 00 Dog

Law Firm Lour Law Firm, Attorneys Im Han-sop et al., Counsel for the defendant-appellant

May 26, 2011

June 23, 2011

1. The Defendant (Counterclaim Plaintiff) paid to the Plaintiff (Counterclaim Defendant) 31, 353, and 809 won with 5% per annum until November 24, 2010 and 20% per annum from the next day to the date of full payment.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 79,00,00 won as division of property, and 5% interest per annum from the day after the day after the decision of division of property is made to the day of complete payment.

3. Plaintiff (Counterclaim Defendant)’s remainder of the principal lawsuit and Defendant (Counterclaim Plaintiff)’s remainder of the counterclaim are all dismissed.

4. The costs of lawsuit are assessed against Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) respectively. The costs of lawsuit are assessed against Plaintiff (Counterclaim Defendant) and 4.

5. Paragraph 1 can be provisionally executed.

The principal lawsuit: Defendant (the Counterclaim Plaintiff; hereinafter referred to as Defendant hereinafter referred to as “Defendant”) shall pay 185, 279, 063 won to Plaintiff (the Counterclaim Defendant; hereinafter referred to as Plaintiff hereinafter referred to as “Plaintiff”) and the amount equivalent to 5% per annum from the day following the day of service of the principal written application for modification of the purport and cause to the day of service of this case to November 23, 2010, and 20% per annum from the next day to the day of full payment.

Counterclaim: The plaintiff shall pay to the defendant 50,00,000 won and 20% interest per annum from the day following the day of service of a copy of the application for amendment of claim of the counterclaim of this case to the day of complete payment. As to the real estate stated in the attached list for division of property, the plaintiff shall implement the procedure for registration of transfer of right to claim for division of property based on the fixed date of this judgment.

1. Facts of recognition;

가 . 원고와 피고는 2003 . 8 . 초순경 처음 만나 교제를 시작하였는데 당시 피고는 부동 산시행업을 하고 있었고 원고는 술집 작은 마담으로 근무하고 있었다 . 원고와 피고는 부산 해운대구 00동 소재 ♥▦▦▦아파트에서 2006 . 7 . 경부터 동거하였으며 2008 . 11 . 15 . 결혼식을 하였으나 혼인신고를 하지 않았다 .

B. The defendant, before living together with the plaintiff on April 10, 1997, married with the plaintiff on April 10, 1997, but on October 2003.

24. A divorced and the apartment sales agency business was creditless and used mainly in the name of the Plaintiff as well as the passbook in the name of the Plaintiff.

C. Around December 2004, the Defendant, while entering a minor speech dispute with the Plaintiff, was under the care of the Plaintiff, and was under the care of the Plaintiff, but did not fit the Plaintiff. Around June 2006, the Defendant was asked about the facts that the Plaintiff had been married before the Defendant, and suffered injury, such as an spacing and spacing, where the Plaintiff’s face and eye were to be treated for eight days, by asking the Plaintiff about the facts that the Plaintiff had been married before the Defendant.

D. On October 27, 2006, the Plaintiff purchased real estate listed in the [Attachment List (hereinafter “instant real estate”) and completed the registration of ownership transfer, and lived together with the Defendant in the said real estate.

E. The Plaintiff demanded the Defendant to file a marriage report, but the Defendant rejected and refused to have his child. The Plaintiff doubtful the Defendant’s previous marriage and female relations, etc., and the Defendant was dissatisfied with the Defendant’s negligence in his family while working in the drinking house even after the Plaintiff was living together.

바 . 피고는 2009 . 1 . 경 개인회생결정을 받았고 2009 . 1 . 14 . 피고를 이사 , 원고를 감사 로 하여 부동산 분양대행업 등을 목적으로 하는 주식회사 ♤☆☆☆☆☆를 설립하였다 .

G. On May 14, 2009, the Defendant 2009, when the Plaintiff was able to work without leaving a house, and the Plaintiff was able to get a phone from her friendship, “The Plaintiff was able to get a phone to her friendship, and then was able to get the Plaintiff at her home to her home with her head, her head, her head, her head, and her head, her head, her head, and her head, her head, her head, and her head from home to her cell, and her head, her head, her head, and her head, her head, her head, and her head from home to her head, her two legs, her head, her head, and her face from home to her head, and the Plaintiff was able to take care of 20 days for 20 days.

H. On October 26, 2009, the Plaintiff got hospitalized treatment for 7 days after the above assault, and the Defendant filed a complaint with the Defendant, who was sentenced to a fine of KRW 1 million for an injury as prescribed by 1465 of the Busan District Court 2009, Busan District Court 2009, and became final and conclusive around that time. The Plaintiff was isolated from the closed ward with a depression during the period from July 17, 2009 to August 14, 2009, and was subject to interview treatment and pharmacologic treatment with his own mind as well as with his own symptoms until now.

I. The plaintiff and the defendant were living separately from May 15, 2009 to the present time, and the defendant was allowed to enter the present place by changing the password of the present place while living in the real estate of this case.

[Ground of recognition] The non-contentious facts, Gap's evidence 3, 6, 7, Gap's evidence 8-1 through 8, Gap's evidence 9, Gap's evidence 15-1 through 14, Gap's evidence 27-1, 2, Gap's evidence 28-1 through 12, Gap's evidence 29, and 35, and the purport of the whole pleadings.

2. Judgment on the Plaintiff’s main claim

A. Determination as to a claim for property damages

(1) The plaintiff's assertion

① The Plaintiff asserts that, besides communal living expenses, the Defendant’s total amount of KRW 61, 43, 714, 217, 987, 108, 993, 816 out of the total amount of KRW 632, 300, 428, 600 related to the Defendant’s automobile x 104, 404, 400, 150, 300, 400, 600, 600, 18, 300, 400, 400, 150, 60, 60, 60, 600, 60, 60, 1530, 7360, 750, 705, 706, 60, 706, 60, 750, 60, 706, 60, etc. of the Plaintiff’s real property.

(2) Determination

( 개 ) 위 ① , ② , ③ 각 주장의 경우 갑 17호증의 1 내지 29 , 갑 18호증의 1 내지 25 , 갑 19호증의 1 내지 23 , 갑 20호증의 1 내지 13 , 갑 21호증의 1 , 2 , 갑 22호증 , 갑 23 호증의 1 내지 24 , 갑 24호증의 1 내지 3 , 갑 34호증의 기재 , 이 법원의 각 ▶◇은행 에 대한 사실조회결과만으로는 원고가 피고를 위하여 위 주장과 같은 액수의 돈 전부 를 지급하였다는 점을 인정하기에 부족하고 , 오히려 원고는 피고로부터 사실혼 기간 중 128 , 280 , 605원 상당을 지급받았음을 자인하고 있으며 , 또한 사실혼기간 동안 당사 자 중 일방이 자기의 돈으로 생활비를 지급한 경우에 당사자 일방이 부담한 생활비가 사실혼관계의 부당파기와 인과관계가 있는 손해라고 볼 수 없으므로 원고의 위 주장은 이유 없다 .

(3) 40,000 won for marriage

Marriage consciousness, barring any special circumstance, is a customary sense to be recognized as a community as a marriage on the premise that the parties are married, and thus, the parties are not recognized as having a common life within a short time, which cannot be socially recognized as having been equipped with the actual condition as a married community after marriage, and the relationship is resolved and the expenses required therefor are deemed to be an expenditure of dance, the party who paid the expenses may seek compensation therefor from the party liable for failure in the de facto marriage community. According to the above facts, according to the above facts, the plaintiff and the defendant living together with about two years with the intention of marriage and about six months after raising a marriage ceremony on November 15, 2008. It is difficult to view that the marriage relationship between the plaintiff and the defendant was resolved within a short time to the extent that it is impossible to recognize the substance of the married community, and thus, it cannot be said that the expenses for marriage ceremony or new expenses for marriage cannot be claimed as compensation for such expenses.

C) Amount of KRW 10,000,000,000, which the Defendant sold and embezzled used cars owned by the Plaintiff for halog halog New Flas without permission

In full view of the purport of Gap evidence 5-2, Gap evidence 48-1, and Eul evidence 2-1, and the whole arguments, the defendant sold 10,500,000 won used cars owned by the plaintiff to the plaintiff and did not return to the plaintiff after receiving the price, and thereby, it can be acknowledged that the fact that a fine of KRW 1,00,000 was final and conclusive due to embezzlement. Thus, the defendant is obliged to pay the plaintiff KRW 10,50,000 as compensation for damages caused by tort.

(D) Plaintiff’s medical expenses of KRW 853,809

In full view of the purport of Gap evidence 8-1 through 8-1 and the whole arguments, the plaintiff is obligated to pay 853 and 809 won to the plaintiff as compensation for damages caused by a tort, on the ground that the plaintiff received medical treatment at a hospital by the defendant's assault and that the medical treatment expenses were 853 and 809.

E) Amount equivalent to 21, 414, 629 won

Although the Defendant did not have any dispute between the parties even after the failure of a de facto marital relationship with the Plaintiff in the instant real estate even after the failure of a de facto marital relationship with the Plaintiff, it is difficult to view the Defendant’s fact that the instant real estate was jointly formed in a de facto marital relationship with the Plaintiff, despite the difference in the degree of contribution to the Plaintiff and the Defendant’s death, it is difficult to view

B. Determination as to the claim of consolation money (50 million won)

If both the above-mentioned facts, the plaintiff and the defendant agree to resolve the de facto marital relationship, and considering that they are liable for the failure of the de facto marital relationship to the other party by filing the main claim and counterclaim in this case, they should be deemed to have reversed the de facto marital relationship between the plaintiff and the defendant.

However, as seen earlier, the cause of de facto marriage, which caused the failure of a de facto marriage, requires the Plaintiff to file a marriage report and have his/her child, but the Defendant seems to have failed to comply with it, but it seems that the Defendant did not make much efforts to resolve the conflict even though the Plaintiff was able to take advantage of an indecent violence among the disputes with the Plaintiff, which occurred after the Plaintiff’s failure to comply with it.

Therefore, since a de facto marital relationship is broken down with the defendant's responsibility and the plaintiff suffered mental suffering is obvious in light of the empirical rule, the defendant is obligated to pay consolation money for such mental suffering to the plaintiff. In full view of all the circumstances revealed in the arguments of this case, such as the plaintiff and the defendant's age, occupation, property level, formation process of de facto marital relationship, duration of the de facto marital relationship, and the situation where the failure occurred, it is reasonable to determine consolation money as 20 million won.

C. Sub-committee

Therefore, the Defendant’s claim, 353, 809 won ( = 2.A. 10, 500, 000 won + 2. A. (2) (D) 853, 809 won + 2.b. 2. (b) of this case’s claim against the Plaintiff as of November 23, 2010, the following day after the delivery date of a copy of the application for change of reason, and that the Defendant’s claim as of November 24, 2010 from November 24, 2010 to June 23, 2011, the Defendant’s obligation to pay damages for delay at the rate of 0% per annum from the following day of this case’s delivery date of a copy of the application for change of reason, to June 23, 2011, as to the existence or scope of this case’s obligation to pay damages for delay by 20% per annum under the Civil Act.

3. Judgment on the defendant's counterclaim

A. Determination on the claim of consolation money

The Defendant, while working in a liquor house even after marriage, was frighten by purchasing a well-known product. Before marriage, the Plaintiff’s father was the mother of the Defendant’s mother, but opposed to the marriage after marriage. However, the Defendant asserted that a de facto marriage is broken down between the Plaintiff and the Defendant due to the Plaintiff’s responsible cause, such as the Plaintiff’s living at his wife, and the wife’s interview to the food, etc., by failing to pay a consolation money of KRW 50,00,000,000.

However, the statement in Eul evidence 1-1-9 alone is insufficient to recognize the defendant's above assertion, and there is no other evidence to acknowledge it. Rather, as seen earlier, the main liability for failure of a factual relationship is to the defendant, so the defendant's above assertion is without merit.

B. Determination on the claim for division of property

(1) Details of the formation of the property

(A) On October 27, 2006, the Plaintiff: (a) as to the instant real estate from 00 persons holding the right to sell raw water; and

The sales right purchase contract was concluded in KRW 285, 636,830, and the defendant paid KRW 30 million on the same day.

(B) On October 27, 2006, the Plaintiff offered the instant real estate as security and borrowed KRW 250 million to △△△△△△△△△△△△△△ (hereinafter “△△△△△△△△△△”). The Plaintiff paid the remainder of the purchase price by totaling KRW 8.5 million monthly rent received from the lessee of the instant sub-dongsan, which was received from the lessee of the instant sub-dong, on the same day.

( 다 ) 원고는 2008 . 8 . 5 . 주식회사 ♥ ( 이하 ' ♥ ' 이라 한다 . ) 에 이 사건 부 동산을 담보로 제공하고 2억 4 , 900만 원을 대출받아 위 □△△△△△△△의 대출금을 변제하였다 .

라 원고는 2006 . 10 . 27 . 부터 2008 . 8 . 5 . 까지 □△△△△△△△에 대하여 대출금 이자 47 , 004 , 103원을 변제한 것을 비롯하여 □△△△△△△△에 대하여 대출기한 전 중도상환수수료 5 , 000 , 000원을 변제하였고 , 2008 . 8 . 6 . 부터 2010 . 9 . 24 . 까지 ♥

The principal and interest of the loan has been repaid in 33, 111, 830 won, respectively, and the loan has been repaid in recent years.

E) On December 2005, the Defendant purchased and embarked on a body-wide car. On May 2006, the Defendant disposed of the last passenger car and purchased the benz car. On December 6, 2007, the Defendant sold the benz car and purchased the 67 passenger car.

F) On August 7, 2008, the Defendant sold the said car to the Plaintiff for KRW 10,500,000,000,000,000,000 to the Plaintiff at KRW 10,000,000,000 around the marriage failure.

G) From January 27, 2006 to July 30, 2008, the Defendant deposited KRW 402,056, and 405 as the Plaintiff’s passbook. However, from March 22, 2005 to July 29, 2008, the Defendant collected KRW 273,775, and 800 in total, from March 22, 2005 to July 29, 2008. The money was used as the Defendant’s purchase cost of benz vehicles ( KRW 90 million) and living cost.

(2) Property to be divided and its value;

[Grounds for recognition under paragraphs (1) and (2) above: Unsured facts, Gap evidence 5-1, 2, 10-6, 11

A person shall be appointed.

[The grounds for recognition under the above paragraphs (1) and (2): The non-contentious facts; Gap evidence 5-1, 2, Gap evidence 10-6, Gap evidence 11-1, Gap evidence 12-1 through 4, Gap evidence 17-1 through 29, Gap evidence 18-1 through 25, Gap evidence 19-1 through 23, Gap evidence 25-1 through 4, Gap evidence 26-1 through 30, Eul evidence 32-1, Eul evidence 32-1, 2, Gap evidence 34-2, Gap evidence 36 through 41, Eul evidence 2, Eul evidence 36 through 41; Eul evidence 19-1 through 23, Gap evidence 26-1 through 4, Eul evidence 26-1, Eul evidence 36 through 41]; the purport of the whole pleadings at the court; the result of the fact inquiry at each court

(3) A party’s assertion and determination

(A) Defendant’s assertion of title trust

피고는 이 사건 부동산이 실질적으로 피고의 소유인데 원고에게 명의신탁을 하였 으므로 이 사건 부동산 및 위 부동산에 설정된 ♥ 에 대한 근저당권의 피담보채 무는 모두 피고의 재산이라고 주장한다 .

살피건대 , 피고가 이 사건 부동산의 매매대금 중 계약금 30 , 000 , 000원을 지급한 사실은 앞서 본 바와 같으나 , 위 인정사실 및 을 7호증의 1 , 2의 각 기재만으로는 피 고가 이 사건 부동산을 원고에게 명의신탁하였다고 인정하기에 부족하고 달리 이를 인 정할 증거가 없다 . 갑 12호증의 1 내지 4 , 갑 25호증의 1 내지 4 , 갑 26호증의 1 내 지 4 , 갑 32호증의 1 , 2 , 갑 41호증의 각 기재 및 변론 전체의 취지를 종합하면 , 원고 는 이 사건 부동산의 취득과 관련하여 등록세 2 , 772 , 000원 , 취득세 2 , 310 , 000원 , 근저 당권설정등기 비용 1 , 820 , 150원 , 근저당권설정등기비용 누락금 추가지급액 123 , 000원 , 부동산 중개수수료 1 , 300 , 000원 등 합계 8 , 325 , 150원을 지급하였고 ♥은행으로부터 대출받으면서 근저당권설정등기 비용 260 , 000원을 지급한 사실 , 원고는 위 부동산에 대한 재산세로서 2007 . 1기분 239 , 890원 , 2007 . 2기분 239 , 890원 , 2008 . 1기분 251 , 530 원 , 2008 . 2기분 251 , 530원 , 2009 . 1기분 234 , 380원 , 2009 . 2기분 234 , 380원 , 2010 . 1기 분 256 , 930원 , 2010 . 2기분 256 , 930원 등을 각 납부해 온 사실 등을 각 인정할 수 있 으므로 이 사건 부동산은 원고의 소유이고 이 사건 부동산에 설정된 근저당권의 피담 보채무 역시 원고의 소극재산이다 .

( 나 ) 원고의 ♥은행 대한 대출금 채무

피고는 원고의 ♥ 은행에 대한 대출금 채무가 263 , 396 , 710원이라고 주장하나 , 갑 10호증의 6의 기재 및 변론 전체의 취지를 종합하면 , 이 사건 사실혼 파탄 시점인 2009 . 5 . 15 . 경 원고의 ♥ 에 대한 대출금 채무는 268 , 996 , 257원 ( = 이 사건 부동 산 매매대금 대출 249 , 000 , 000원 + 공동생활비로 사용한 마이너스 대출 19 , 996 , 257원 ) 인 사실을 인정할 수 있으므로 이 사건 재산분할대상이 되는 원고의 ♥ 에 대한 대출금 채무는 268 , 996 , 257원이다 .

( 다 ) 원고의 우♤ , 심♡ 강에 대한 채무

원고는 2009 . 6 . 22 . 원고 부친의 지인인 우◐으로부터 8 , 000만 원 , 원고 모친의 지인인 심 으 로부터 2009 . 7 . 20 . 1 , 400만 원 , 2009 . 8 . 11 . 600만 원 , 2009 . 9 . 22 . 2 , 500만 원 , 2009 . 9 . 28 . 1 , 500만 원 합계 6 , 000만 원 , 원고의 부 강 으로부터 2009 . 6 . 22 . 4 , 000만 원 , 2009 . 9 . 29 . 2 , 500만 원 합계 6 , 500만 원을 차용하고 2010 . 3 . 26 . 우♤☆에 대하여 채권최고액 8 , 000만 원인 근저당권 , 심♣ 대하여 채권최고 액 6 , 000만 원인 근저당권을 각 설정하였고 2010 . 3 . 29 . 0 & 에 대하여 채권최고액 6 , 500만 원인 근저당권을 설정하였으므로 위 각 채무들이 원고의 소극재산으로 포함되 어야 한다는 취지로 주장하나 , 원고가 ① , 0 , 0 으로부터 위 각 금원을 차용하였음을 인정할 증거가 없고 , 가사 위 각 금원을 차용하였다 하더라도 금원을 차 용한 시기가 피고와의 사실혼 관계가 파탄된 이후로 위 차용금이 원고와 피고의 공동 생활을 위하여 사용되었다고 보기 어려우므로 원고의 위 주장은 이유 없다 .

(4) Ratio and method of division of property

(A) Division ratio: Plaintiff 45%, Defendant 55%

[Ground of Judgment: 3.B. (1) Facts of recognition, the process of acquisition and maintenance of the property subject to division, the objection to the plaintiff and the defendant, occupation and marriage period, all other circumstances]

(B) Property division method: The property in the name of the plaintiff and the defendant shall be determined as owned by each party, but the plaintiff who owns the property exceeding the amount according to the above division ratio shall pay the amount equivalent to the difference to the defendant.

[Ground of determination: Convenience of division; the name and form of ownership of the property subject to division; the process of acquisition and maintenance; the situation of use; the age and occupation of the plaintiff and the defendant; all the circumstances shown in the argument of this case, such as the occupation

C) Property division amount to be paid by the Plaintiff to the Defendant: 79,000,000 won

【Calculation Form】

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

Total net property of the Plaintiff and the Defendant 287, 003, 743 x 55% = 157, 852, 058 won (at least won)

(2) Amount obtained by deducting the defendant's net property from the port.

157, 852, 058 won - 78, 500, 000 won = 79, 352, 058 won

③ Division of property that the Plaintiff pays to the Defendant

② 79,000,000 won for a little amount under the above paragraph

(5) Sub-decisions

Therefore, the Plaintiff is obligated to pay to the Defendant 79,00,000 won as division of property and damages for delay at the rate of 5% per annum as stipulated by the Civil Act from the day following the day when this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's principal lawsuit and the defendant's counterclaim are accepted within the scope of the above recognition, respectively, and all of the plaintiff's remaining principal lawsuit and the defendant's remaining counterclaim are dismissed. It is so decided as per Disposition.

Judges Kim Sang-hoon

Judges Kim Young-young

Judges White-in-law