Plaintiff (Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jong-deok, Counsel for the defendant-appellant)

Principal of the case

December 22, 2008

Suwon District Court Decision 2007Ra6574 Decided March 20, 2008

1.The judgment of the first instance shall be modified as follows:

A. The plaintiff and the defendant are divorced.

B. The defendant shall be designated as a person with parental authority and guardian of the principal of the case.

C. The Plaintiff shall pay to the Defendant KRW 80,000 per month on the last day of October 21, 2019 from the day following the day when the judgment of this case became final and conclusive with the child support of the principal of this case.

D. The plaintiff's claim for consolation money added in the trial is dismissed.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance court is revoked. The plaintiff and the defendant shall be divorced. The defendant shall pay to the plaintiff a solatium of 50 million won and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment. The plaintiff shall be designated as the person with parental authority and the guardian of the principal of this case. The defendant shall pay the plaintiff 50,000 won per month as the last day of each month from the day following the delivery of a copy of the complaint of this case to the child support of the principal of this case until October 21, 2019 (the plaintiff added the claim for consolation money, the person with parental authority and the guardian, and the child support claim

1. Determination on the claim for divorce and consolation money

(a) Facts of recognition;

(1) The plaintiff is a legal spouse who has filed a marriage report on May 2, 1998 and completed the marriage report on May 30, 1998, and has the principal of the case under his name.

(2) On October 197, 197, when the Plaintiff had been holding two months the qualifying examination for medical specialists as the fourth year 4th, the Plaintiff met the Defendant with the introduction of a ship ship. The Plaintiff was aware that the Defendant graduated from the U.S. ○○○○, and the Plaintiff was introduced as having graduated from the Defendant even in the marriage ceremony of the Plaintiff and the Defendant. However, there was no fact that the Defendant graduated from the above sound.

(3) From the beginning of marriage, the Plaintiff and the Defendant did not want to have a conflict due to the difference in the method of living (such as that the Plaintiff caused the conflict to the Defendant, etc., strongly criticizes the Defendant’s living attitude, household affairs, and household operation). From April 2002, the Plaintiff entered into an illegal relationship with Nonparty 1, who was an elementary school, a e-mail of the Plaintiff, and the Defendant, who became aware of the relationship between the Plaintiff and Nonparty 1, talked with the Plaintiff’s mother, and the Plaintiff’s mother was a tree.

(4) On August 2003, the Plaintiff, while working at the △△△ Hospital in Seongbuk-si, Sungnam-si, sought the Defendant’s opinion that the Plaintiff was leaving the hospital located in Gangnam-si to leave the hospital at the △△△ Hospital, such as Ulsan and Chungcheongnam-do, and unilaterally retired from the hospital located in Ulsan-si.

(5) After the plaintiff getting out of Ulsan, the plaintiff was living in Ulsan Island, along with the principal of the case, and the defendant was living in Ulsan Island separately from the principal of the case. The plaintiff continued to serve in the school with the non-party 1, and sent a me to the defendant a medal demanding divorce on or around December 28, 2003. On February 2004, the plaintiff and the defendant made efforts for the restoration of relation between the plaintiff and the defendant, and they were living in Ulsan.

(6) However, the relationship between the Plaintiff and the Defendant did not change. Rather, the Plaintiff continued to teach Nonparty 1 until Staff 2004, and the Defendant continued to doubt the relationship between the Plaintiff and Nonparty 1. Since 2005, the Plaintiff and the Defendant continued to have a conflict relationship, such as not having a marital relationship at all, since 2005.

(7) Around September 21, 2006, the Plaintiff sent a note demanding a divorce again to the Defendant. Around May 2007, the Defendant refused the divorce, and the Defendant was at home around May 14, 2007, and had been living separately with the Defendant until now. On the other hand, the Plaintiff exercised the economic management right from the time when he left the hospital located in Ulsan to pay KRW 3 million to the Defendant for living expenses, child support, etc., and thereafter the amount of the payment was reduced to KRW 2 million, and from November 2007, the Defendant did not pay the living expenses to the Defendant from November 2007.

(8) On May 11, 2007, around the time when the Plaintiff demanded divorce, and the father of the Defendant stated that the Plaintiff should pay 1 billion won and 4 million won per month to the Plaintiff for division of property and compensation for childcare, and around June 2007, the Defendant told that the Plaintiff would demand 50 million won and 4 million won per month to the Plaintiff.

(9) 피고는 이 사건 이혼소송 중인 2008. 4. 10.경 원고가 근무하는 ■■■병원의 상사인 교수 소외 2에게 찾아가 원·피고의 이혼 문제를 이야기하였고, 피고의 아버지도 같은 달 14. 원고가 근무하는 방사선과의 과장 소외 3을 찾아가 원·피고 사이의 이혼 문제에 대하여 이야기함으로써, 원고가 이에 대하여 해명하게 되었고, 그로 인하여 원·피고의 이혼 문제가 원고 직장에 알려지게 되었다.

(10) The Plaintiff filed a criminal complaint against the Defendant on the ground that the Defendant hackinged the Plaintiff’s e-mail, and that he found the Plaintiff’s e-mail at the hospital working for the Plaintiff and obstructed defamation and business. However, the Defendant was subject to

[Ground for Recognition: Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 5, 6, 9, Eul evidence 1-1 through 106, Eul evidence 2, 3-1, 2, Eul evidence 4-2, Eul evidence 12, non-party 4's testimony and the purport of the whole pleadings]

B. Determination as to a divorce claim

(1) The plaintiff asserts that the plaintiff's claim for divorce should be accepted, since the marriage of this case was broken down due to the defendant's responsibility.

However, according to the above facts of recognition, it is reasonable to view that the marital relationship between the original and the defendant did not make any effort to recover the marital relationship and aggravated the relationship with the defendant by criticizeing the defendant without making any effort to recover the marital relationship, establishing an illegal relationship with another woman, etc., and that the relationship with the defendant was unilaterally aggravated, and that the plaintiff, who unilaterally demanded divorce and abandons the principal of the case without paying his house and living expenses, has failed to the extent that it cannot be recovered due to the plaintiff's main responsibility. Therefore, the plaintiff's above assertion is without merit.

(2) The plaintiff asserts that the plaintiff's claim for divorce should be accepted, since the defendant, without the intention to continue the marriage, refuses the divorce in writing or retaliation against the plaintiff, even though the marriage was broken down due to the plaintiff's responsibility for home affairs.

살피건대, 위 인정사실에 의하면, 피고와 피고의 아버지는 원고에게 이혼의 대가로 일정금액을 제시하기도 하였으며, 원고가 근무하는 ■■■병원의 교수 및 담당과장 등 직장상사들에게 수차례 찾아가 원고와 피고의 이혼 문제에 관하여 이야기한 사실은 인정되나, 위와 같은 사정만으로는 피고에게 혼인계속의사가 없다고 단정할 수 없고(위와 같은 행위는 원고의 지속적인 이혼 요구에 대한 일시적인 감정적 대응이거나, 제1심 판결 이후에 원고와의 혼인관계를 회복하기 위하여 주위 지인들에게 도움을 얻기 위한 것이라고 못 볼 바 아니다.), 달리 피고가 오기 또는 보복적 감정에서 이혼을 거부하고 있다고 인정할 만한 증거가 없으므로, 원고의 위 주장도 이유 없다.

(3) However, Article 840 subparagraph 6 of the Civil Act, which provides for relative and abstract grounds for divorce, provides that "if there is any other serious reason making it difficult to continue a marriage," and does not explicitly prohibit the claim for divorce by the responsible spouse, the issue of whether to allow the claim for divorce shall be determined through a change of social awareness about the marriage and divorce system and a review of the need for national intervention therefor, etc. Therefore, it cannot be denied that the spouse who is not responsible for preventing the claim for divorce in principle can be protected by the responsible spouse, but it is not reasonable to allow the claim for divorce solely on the ground that there is no possibility of adjudication and agreement due to the de facto failure of the marriage and the de facto failure of the marriage, the mere fact that the claim for divorce is not permissible by the reason that the spouse is legally binding only a non-existent marital relationship in real life, and thus, it is unreasonable to allow the other spouse as well as the responsible spouse to take measures in terms of happiness, freedom of privacy, stability of status order, and the protection of the spouse or children without responsibility.

In this case, according to the above facts, the relationship between the plaintiff and the defendant was aggravated due to the plaintiff's improper act in the situation that the relationship between the plaintiff and the defendant was not smooth from the beginning of the marriage. The plaintiff and the defendant living together to make a decision again on the ground of aggravation of the above marital relationship and the plaintiff's workplace relocation, but they did not recover at all, but they did not have any marital relationship since 2005, and the plaintiff went home again on around May 2007 and expressed strongly that he did not have an intention to criticize the defendant's living attitude while recognizing his past misconduct and to maintain the marital relationship. In light of the above circumstances, the marital relationship in this case is practically broken down and there is no possibility of an agreement on adjudication at all. Accordingly, the plaintiff's claim for divorce on this ground is justified.

C. Determination as to the claim of consolation money

The plaintiff sought the payment of consolation money to the defendant on the ground that the marital relationship has ceased due to the defendant's fault. However, as seen above, the plaintiff is mainly responsible for the failure of the marital relationship of this case. Therefore, the plaintiff's claim for consolation money is

2. Determination as to the designation of a person with parental authority and a custodian and child support

In full view of all the circumstances revealed in the pleadings of the case, including the Plaintiff and the Defendant’s age, occupation, property level, current situation of custody, process of marital life, distress situation, the age of the principal of the case, and the Defendant’s continuous custody of the principal of the case after separation of the case, etc., it is reasonable to designate the Defendant as the person with parental authority and the custodian of the principal of the case for the smooth growth and welfare of the principal of the case (Therefore, the Plaintiff’s claim for designation of the person with parental authority and the custodian added in the trial of the

On the other hand, as long as the defendant was designated as the guardian of the principal of this case, the plaintiff is obligated to share the child support with the defendant as the father of the principal of this case. In light of all the circumstances revealed in the arguments of this case, such as the age and state of custody of the principal of this case, the income and property level of the plaintiff and the defendant, in particular, the plaintiff is a professor of the medical doctor and the △△ University University, who has an annual salary of KRW 100,000,000,000 as the child support for the principal of this case, and it is reasonable for the plaintiff to pay 80,000,000 won each month from the day following the day when the judgment of this case became final and conclusive until October 2

3. Conclusion

If so, the plaintiff's claim for divorce is accepted due to the reason, and the claim for consolation money added in the trial is dismissed due to the lack of reason, and as to the designation of a person with parental authority and a custodian of the principal of the case, and child support, the judgment of the court of first instance is reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted, and the claim added in the trial is dismissed. It is so decided as per Disposition by the court of

Judges Jeong Young-hun (Presiding Justice)