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(영문) 대법원 2005. 8. 19. 선고 2003므1166,1173 판결
[이혼및재산분할·이혼및재산분할등][미간행]
Main Issues

[1] The scope of the debt owed by the husband and wife during the marital life to a third party, which is subject to division of property

[2] Whether the court must individually and specifically state all the circumstances in determining the method of division of property (negative)

[3] Whether evaluation of the value of the property, which is the basis for the calculation of the amount of division of property, must necessarily be based on the market price appraisal (negative)

[4] Method of calculating the amount of consolation money to a responsible spouse

[Reference Provisions]

[1] Article 839-2 of the Civil Act / [2] Article 839-2 of the Civil Act / [3] Article 839-2 of the Civil Act / [4] Articles 806 and 843 of the Civil Act

Reference Cases

[2] Supreme Court Decision 92Meu501 delivered on May 25, 1993 (Gong1993Ha, 1881), Supreme Court Decision 97Meu1486, 1493 delivered on February 13, 1998 (Gong1998Sang, 767) / [3] Supreme Court Decision 95Meu175, 182 delivered on October 12, 1995 (Gong1995Ha, 3780), Supreme Court Decision 96Meu1397 delivered on June 11, 199 (Gong199Ha, 141), Supreme Court Decision 9Meu1909, 1916 delivered on January 28, 200, Supreme Court Decision 2008Meu28637 delivered on June 26, 207 (Gong199Ha, 1411), Supreme Court Decision 207Hun-Ga367, Aug. 28, 2002)

Plaintiff (Counterclaim Defendant), Appellant and Appellee

Plaintiff

Defendant (Counterclaim Plaintiff), Appellee-Appellant

Defendant

Judgment of the lower court

Daejeon High Court Decision 200Reu344, 351 delivered on May 15, 2003

Text

All appeals are dismissed. The costs of appeal are assessed against each party.

Reasons

1. As to the appeal by the plaintiff (Counterclaim defendant, hereinafter "the plaintiff")

A. Ground of appeal Nos. 1, 2, and 4: As to the scope of the property subject to division

The debt borne by one of the married couple during marriage is the debt borne jointly by the couple only when it is related to ordinary family affairs or when it is accompanied by the formation of common property, and is the object of liquidation. It is the theory of the lawsuit that if one of the married couple voluntarily sells the joint property that he/she has dealt with while married, the proceeds from the sale should be the object of division of property.

However, the obligation which the other party has accepted due to a business transaction, which had been operated as the main source in the normal marital life before the failure, shall be deemed to have been borne by the formation of a common property as the purpose of the common interest of the couple. Even if either spouse disposes of the common property after the failure in the marital relationship actually led to the failure of the common property, if the sale was made at an appropriate market price and the amount of debt equivalent to the same amount to be borne by the couple jointly, the proceeds from the sale shall not be included in the value of the property which is the object of the division of the property. It shall not be deemed to have been included in the value of the property which is the object of the division of the property, on the grounds that the place of use of the debt has been borne by the spouse during the marital life, but it is not clear that the place of use of the debt has already been extinguished

According to the reasoning of the judgment below, the court below found that the plaintiff and the defendant (Counterclaim plaintiff, hereinafter "the defendant") did not have any particular property at the time of marriage, and the defendant inherited real estate and did not have any real estate or provided as collateral and did not acquire other real estate and paid part of debts. In this case, since the sale of the defendant's real estate, debt burden, and repayment were conducted in the process of forming common property during marriage, only the active property remaining in the defendant's name at the time of the closing of argument in this case shall be subject to division of property pursuant to the divorce in this case and the entire property remaining in the defendant's name shall be subject to division of property. In light of the records, the above fact-finding and determination by the court below are just and correct, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the facts contrary to the rules of evidence, failing to exhaust all deliberation, or by misapprehending the legal principles on the scope of property subject to division of property

Furthermore, in determining the method of division of property, the court does not have to separately and specifically state all the circumstances individually and specifically (see Supreme Court Decision 97Meu1486, 1493, Feb. 13, 1998). It includes the purport of rejecting Plaintiff’s assertion against the positive property subject to division of property and the negative property finally determined and explained by the court below. Thus, it cannot be said that the court below erred by neglecting its determination on the Plaintiff’s assertion as to whether the property is subject to division of property, as alleged in the grounds of appeal.

B. Ground of appeal No. 3: As to the assessment of the property value subject to division

The record reveals that the court below assessed the value of active property determined as above based on the higher amount between the officially assessed value of each of the above real estate and the appraised value of one bank for lending around January 2001.

Since the value of the property, which is the basis for calculating the amount of division of property, is not necessarily required to be recognized by the market price appraisal (see Supreme Court Decisions 95Meu175, 175, 182, October 12, 1995; 2002S36, August 28, 2002, etc.), there is no dispute over the value of the property, which is the basis for calculating the amount of division of property, in calculating the value of each land under Articles 1, 2-1, 2-2, and 2-3 of the decision of the court below, which is the property to be divided, and in this case, even though the plaintiff urged the court below to apply for the market price appraisal, the court below is just and correct to calculate the value of each land under Articles 1, 2-1, 2-2, 2-2, 2-3, and 5 of the decision of the court below, as alleged in the grounds of appeal, there is no other error in the misapprehension of the legal principles as to the value of division or appraisal.

C. Ground of appeal Nos. 5 and 6: Contribution ratio and method of division of property

According to the reasoning of the judgment below, the court below determined that the Plaintiff’s remaining money out of the above loans is reasonable to pay the Plaintiff KRW 120 million to the Plaintiff, in full view of the following: (a) the Plaintiff and the Defendant’s age, occupation, period of marriage, etc.; and (b) most of the active properties are the Defendant’s inherited property (the value of the real estate inherited by the Defendant exceeds 2/3 of the value of the active properties exceeds 627,857,00), and the Plaintiff acquired real estate as the compensation for inherited property (the value of the real estate remaining after the Defendant’s inheritance is 627,857,000,000). The Plaintiff’s real property as security was 150,000,000 won, which the Plaintiff used by one bank as the Defendant’s real property; (c) the Plaintiff’s active property and the Defendant’s property remaining after the remainder of the loans are finally reverted to the Defendant; and (d) the Defendant’s payment of KRW 120,00,00.

If the court below examines the various circumstances considered in determining the amount and method of division of property by the record, it is reasonable to determine the ratio and method of division of property. Therefore, contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the facts contrary to the rules of evidence, by failing to exhaust all necessary deliberations, or by misapprehending the legal principles on division of property.

D. Ground of appeal No. 7: Regarding the amount of consolation money

The amount of consolation money for a responsible spouse shall be determined ex officio by the court, taking into account all the circumstances appearing in pleadings, such as the circumstance and degree leading up to the responsible act, the cause and responsibility for the failure of marriage, the spouse’s age and financial status, etc. (see Supreme Court Decision 2003Meu251, 2268, Jul. 9, 2004). In light of all the circumstances revealed in pleadings, such as the circumstance and responsibility leading up to the failure of marriage, the period during which marriage is in progress, the spouse’s age and financial status, etc., the decision of the court below to the amount of consolation money as KRW 30,000 shall be reasonable, and there shall be no errors by misapprehending the facts or by misapprehending the legal principles concerning the calculation of consolation money.

E. Ground of appeal No. 8: Regarding misapprehension of the scope of the judgment below as to the designation of the exerciser of parental authority

According to the records, since the plaintiff specified that he is dissatisfied with the claim for consolation money and division of property in the petition of appeal by the court below, the designated part of the person exercising parental authority is not limited to the scope of the party's trial, but there is no benefit to seek correction in the age of majority. Therefore, this part of the ground of appeal is without merit without merit.

2. As to the defendant's appeal

The defendant did not state the grounds for appeal and did not submit the appellate brief even after receiving the notification of the receipt of the trial record from the party members, and does not seem to have any grounds for ex officio investigation in this case. Thus, the defendant's appeal cannot be dismissed pursuant to Article 12 of the Family Litigation Act and Article 429 of the Civil Procedure Act.

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)

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심급 사건
-대전고등법원 2003.5.15.선고 2000르344
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