(영문) 부산가정법원 2018.5.15.선고 2017드단200012 판결

3. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) the amount calculated as solatium 15 million won and 15% per annum from June 27, 2017 to the date of complete payment.

4. All of the plaintiff (Counterclaim defendant)'s claims for divorce and solatium are dismissed.

5. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 20 million won as division of property and 5% interest per annum from the day following the day of the decision to complete payment with respect to the above amount.

6. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) for 70% of the total costs of the principal lawsuit and counterclaim, and the remainder 30% of the costs of the lawsuit are assessed against the Defendant (Counterclaim Plaintiff).

7. Paragraph 3 can be provisionally executed.

Purport of claim

1. Main office.

Under this lawsuit, the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced. The defendant shall pay to the plaintiff 30 million won as consolation money and 15% interest per annum from the day after the delivery date of a copy of the lawsuit in this case to the day of complete payment, and shall pay to the plaintiff 70 million won as division of property and 5% interest per annum from the day after the day after the decision in this case became final to day of complete payment.

2. Counterclaim;

In the first place, on May 22, 2014 between the Plaintiff and the Defendant, a report of marriage between the Plaintiff and the Defendant shall be filed with the Mayor of Kimhae on May 22, 2014. Preliminaryly, the Plaintiff and the Defendant shall be divorced by counterclaim. The Plaintiff shall pay to the Defendant the amount calculated at the rate of 15% per annum from the day following the day of delivery of a copy of the counterclaim of this case to the day of full payment. The Plaintiff shall pay to the Defendant the amount calculated at the rate of 8,2730,000 won per annum from the day following the day of confirmation of the judgment of this case to the day of full payment.

Reasons

The main lawsuit and counterclaim are also examined.

1. Facts of recognition;

A. The Plaintiff and the Defendant were married under the law that reported marriage on May 22, 2014 after commencing their living together from around February 2, 2014, and on May 22, 2014, and there was no child between them.

B. At the time of marriage, the Plaintiff, including a de facto marriage, has become an adult between the first marriage spouse and the Defendant is married to that of the former spouse. At the time of marriage, the Defendant is married to that of the former spouse, and the former spouse is married to that of his or her father and son. The Defendant was not specifically identified to the Defendant at the time of marriage regarding the career and child of divorce including a de facto marriage, but the Plaintiff was not a first marriage through the person who introduced him or her. The Defendant thought that the fact was known to a certain extent.

C. The defendant worked for 00 companies with a 00 company at the time of the teaching system, but around 2015, the shipbuilding industry was conducted.

On April 2015, after the withdrawal from the French Republic of Korea, the Plaintiff opened a secondhand shop in Busan Shipping Daegu-dong. While the Plaintiff worked as a swimming instructor prior to marriage, the Plaintiff left his office with the Defendant on May 1, 2015 and was in charge of the management of the secondhand money on the water.

D. The Plaintiff and the Defendant had frequently conflicted with the Defendant during the marriage period with respect to the Defendant’s departure from employment, opening of high property, and revenue and expenditure of high property, and with respect to conflict between the Plaintiff and the Defendant’s children.

E. From September 5, 2016, the Defendant directly entrusted the management of money on the water and processed the work on the water. Accordingly, the Defendant appeared to work again without the Defendant’s name, and the Defendant went to work again at home on December 15, 2016.

F. After leaving the Republic of Korea, the Plaintiff proposed that f.o.b. f. f. f. f. Doing the head and overseas travel to f. Doing the head to f. china, and d. Doing the f. f. Doing the f. f. Doing on January 5, 2017 as the main line of the Plaintiff’s f. d. Doing on the same room as B during the travel period, Doing the f. Doing. Meanwhile, the Plaintiff maintained an inappropriate f. f., the president, who was the business partner of the cosmetic and the cosmetic, who was going to operate the f. f. f., preparing for the opening of the business, and prepared for the opening of the business, maintained the Plaintiff’s f. f. k. f., who was close to

G. Meanwhile, as the relationship between the Plaintiff and the Plaintiff was reversed, they brought about civil and criminal litigation disputes. The Defendant became aware of the remainder of the Plaintiff’s divorce experience and fraudulent act through Gap.

H. The Plaintiff filed the instant principal lawsuit against the Defendant on January 2, 2017, and the Defendant filed the instant counterclaim on June 23, 2017.

[Ground of recognition] The statement of identical / A1, 2 evidence (each number includes numbers; hereinafter the same shall apply), Eul 4, 5, 9, and 10 evidence or images, family investigation report by family investigation officers, and the purport of the whole pleadings.

2. The primary claim and judgment on the counterclaim

A. The Plaintiff, including a de facto marriage before the marriage, was married three times or more, and one of the former spouse was suicide, and the other spouse was not informed the Defendant of the fact that there was a child between the former spouse. The Plaintiff became aware of such fact through the instant lawsuit, and the Defendant was not married to the Plaintiff if he had known such fact before the marriage. Thus, the report of marriage between the Plaintiff and the Defendant should be revoked as it constitutes a case where the declaration of intention of marriage was made due to fraud under Article 816 subparag. 3 of the Civil Act.

B. “Fraud” under Article 816 subparag. 3 of the Civil Act includes not only cases where one party to a marriage or a third party has notified extremely false facts, but also cases where he/she has not given such notification passive or implied. However, in cases of non-disclosure or silence, it may be deemed unlawful deception if the duty to notify the circumstances in advance under statutes, contract, custom, or cooking is recognized. Whether the duty of disclosure is recognized or not should be determined by comprehensively taking into account the age of the parties, the place of marriage, the circumstances leading up to marriage, the degree of impact on the marriage decision-making, whether the pertinent matters are perceived by the parties or a third party, whether it is essential for the other party to form one’s reputation or trust, whether the other party to the marriage to have been informed of his/her private life or whether there was any concern about the other party’s reputation or privacy, or whether the other party has been aware of the other party’s private life or whether there was any possibility of infringement of the other party’s reputation or privacy, and whether it constitutes a common sense of marriage and social norms.

With respect to the instant case, the Plaintiff did not actively disclose to the Defendant the divorce experience and child, including de facto marriage, at the time of marriage. However, the fact that the Defendant thought through the introduction that the Defendant was aware of the Plaintiff’s circumstances is recognized. However, in light of the aforementioned legal principles, such as the Plaintiff and the Defendant’s age and experience at the time of marriage, the Plaintiff’s period of marriage, the Plaintiff’s respective marriage period, the degree of exchange between the Plaintiff’s spouse and his spouse, the circumstance leading up to the failure of de facto marriage and the circumstances leading up to the failure of a de facto marriage, etc., such circumstance alone does not constitute a case where the Plaintiff and

Therefore, the plaintiff's claim for annulment of marriage is without merit, and without merit, the consolation money and the claim for division of property premised on revocation of marriage is without merit.

3. Determination as to the claim for divorce and consolation money

A. Determination on the principal lawsuit and counterclaim divorce claim

1) According to the above facts of recognition, it is reasonable to view that the marriage between the plaintiff and the defendant has come to a failure to recover any more due to the plaintiff's mistake, such as the plaintiff's departure from office and opening of a secondhand business, monetary interest arising from the operation of a secondhand business, and conflict with the defendant's children, but it is recognized that there was a dispute between the plaintiff and the defendant. However, it is reasonable to view that the plaintiff's unilateral withdrawal of the plaintiff's unilaterally rather than such circumstance, and the plaintiff did not actively disclose his spouse's trust, and the defendant knew of the fact through the lawsuit of this case.

2) Meanwhile, while the Plaintiff appears to be responsible for the failure of marriage to the Defendant, such as verbal abuse and assault during the marriage period, and the Defendant’s family members also make verbal abuse to the Plaintiff and make air conditioners, etc. However, the evidence submitted by the Plaintiff alone is insufficient to determine that the Defendant is mainly responsible for the failure of marriage to the Defendant, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit.

3) Therefore, the Plaintiff and the Defendant have grounds for judicial divorce under Article 840 subparag. 1 and 6 of the Civil Act. Thus, the Plaintiff and the Defendant have grounds for filing a counterclaim for divorce, and the Plaintiff’s claim for divorce on the principal lawsuit, which are the responsible spouse, is without merit.

B. Determination on the claim of consolation money and counterclaim

1) Claim for consolation money in principal lawsuit

The plaintiff asserts that the defendant, who is mainly responsible for the failure of the marriage, is liable to compensate the plaintiff for mental damage, but the main liability of the failure of the marriage of this case is the plaintiff, so the plaintiff's main liability of the failure of the marriage of this case is without merit.

2) Claim for solatium consolation money

Inasmuch as it is apparent in light of the empirical rule that the defendant was suffering from considerable mental suffering due to a cause attributable to the plaintiff's improper act, etc., the plaintiff is obliged to pay consolation money due to the failure of marriage to the defendant.

Furthermore, with respect to the amount of consolation money, the amount of consolation money shall be determined as KRW 15 million according to the defendant's efforts, in consideration of the various circumstances shown in the arguments of this case, such as the health team, the period of marriage between the plaintiff and the defendant, the intention and period of misconduct, the degree of contribution to the failure of marriage in the marriage, the psychological degree of which the defendant had experienced, etc.

Therefore, according to the Defendant’s claim against the Defendant as consolation money of KRW 15 million, the Plaintiff is obligated to pay damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 27, 2017 to the date of full payment, which is the day following the delivery date of a duplicate of the counterclaim of this case.

4. Determination as to the claim for division of property

A. Facts of recognition

1) On February 10, 2014, the Plaintiff and the Defendant purchased apartment units in the Kimhae-dong, Kim Jong-si, and lived at the same place. The purchase price was paid by the Plaintiff KRW 25 million, and the Defendant paid KRW 95 million (including KRW 30 million loans from a national bank). At the time of occupancy, the Defendant assumed that the purchase price was KRW 5.5 million, equivalent to KRW 2.5 million, the registration cost was KRW 2.5 million, and the purchase cost of home appliances was KRW 5.1 million.

2) On April 25, 2015, the Defendant opened a secondhand shop in Busan metropolitan transportation Daegu, and around KRW 100 million, including the lease deposit amount of KRW 30 million, KRW 40 million, KRW 10 million, KRW 60 million, KRW 60,000,000, KRW 3000,000, which the Defendant leased the said apartment living together with the Defendant, and KRW 30,000,000,000, which the Defendant borrowed the apartment located in Kimhae-dong, Kimhae-dong, as collateral, from his father-child on February 25, 2014, the Defendant created a retirement allowance of KRW 10,000,000, KRW 100,000, KRW 10,000, Defendant’s deposit, and KRW 10 million.

3) The Plaintiff had been working as a swimming instructor, health radar, etc. before the marriage. On February 2, 2014, the Plaintiff worked as a sports room in the health room. However, upon receiving a request from the Defendant to help the Defendant perform the physical activities, and then retired, the Plaintiff worked together with the Defendant from May 1, 2015 to September 5, 2016, and performed the duty of care for money by separating the Defendant from the Defendant’s help and selling goods, and also conducted the duty of care, such as preparing for meals.

[Ground of recognition] The above-mentioned evidence, Gap 6, 7, 9, 10 evidence, Eul 1, 2, and 3, or the purport of the whole pleadings.

(b) The point of time for division of property;

In principle, the property subject to division in the division of property following judicial divorce and its amount shall be determined on the basis of the date of the closing of argument in the divorce lawsuit (see Supreme Court Order 2000No13, May 2, 2000). However, in special circumstances, such as where there are changes in the property relationship between husband and wife as of the date of closing of argument following the failure of the marriage, and there are special circumstances, such changes are irrelevant to the property relationship formed jointly during the marriage, excluding those subject to division of property (see Supreme Court Decision 2013Meu1455, Nov. 28, 2013, etc.).

In the instant case, it is reasonable to view that around December 15, 2016, when the Plaintiff and the Defendant left at a higher level in light of the situation of their separation and the progress of the instant lawsuit, etc., the marriage relationship between the Plaintiff and the Defendant reached the irrecoverable breakdown. As such, around December 15, 2016, around December 15, 2016, the property division base date shall be the time of property division, but if no relevant date is available, the date shall be the nearest date.

The property subject to division: as shown in the attached Table of "Detailed Statement of Property Divided" (the part that is not urgent separately from the list of Property Divideds, which is against this, and the defendant's argument shall be deemed to be rejected in all).

(d) Ratio and method of division of property;

1) Division ratio: Plaintiff 25%, Defendant 75%

[Ground of determination] The degree of contribution of plaintiffs and defendants to the formation and maintenance of the property subject to division, the process, period, and reason for the failure of marriage, and various circumstances surrounding the argument in this case, including the plaintiff, defendant's age and occupation

2) The method of division of property: In light of the name and form of the property subject to division, the details of acquisition, convenience of division, etc., the property and debt under the name of the Plaintiff and the Defendant shall be reverted to the Defendant on a fixed basis, and the Plaintiff shall have the Defendant pay in cash the shortage of the amount ultimately attributable to the Defendant according to the ratio of division of property.

3) Property division amount to be paid by the Plaintiff to the Defendant: 20 million won

【Calculation Form】

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

169, 245, 533 won ¡¿ 25% = 42, 311, 383 won

(2) Amount under the above paragraph (1) after deducting the plaintiff's net property:

42, 311, 383 - 63, 691, 399 won = 21, 380, 015 won

③ Division of property to be paid by the Plaintiff to the Defendant: 20 million won

E. Sub-committee

Therefore, the plaintiff shall pay to the defendant 20 million won as division of property and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day after the judgment became final to the day after full payment is made.

have an obligation.

5. Conclusion

Therefore, the defendant's preliminary counterclaims and the claim of consolation money are accepted for the reasons, and all the plaintiff's principal lawsuit, the plaintiff's principal lawsuit, the defendant's main counterclaims are dismissed for the reason that they are without merit, and the claim of division of property among the principal lawsuit and the counterclaims is determined as above. It is so decided as per Disposition.

Judges

Judges already appointed

참조조문

-민법

-민법 제816조 제3호

-민법 제840조

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