2015Dhap200381. Divorce and division of property

2015Dhap200701 (Counterclaim) Divorce and consolation money

KimA (***************************))

Address Ma-si

[Reference domicile]

Attorney Lee Do-young

J.B (*********** 2**********))

Busan Address

[Reference domicile]

Attorney Lee Do-young

August 13, 2015

September 24, 2015

1. The plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced by the principal lawsuit and counterclaim.

2. The defendant (Counterclaim Plaintiff)'s counterclaim damages claim is dismissed.

3. Defendant (Counterclaim Plaintiff) pays to Plaintiff (Counterclaim Defendant) 56,00,000 won as division of property and 5% per annum from the day following this judgment became final and conclusive to the day of full payment.

4. The costs of lawsuit shall be borne by each person.

Main Action: (1) of the Disposition No. 1, Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay the Plaintiff (Counterclaim Defendant; hereinafter “Defendant”) the amount calculated by the division of property at 195,00,000 won and the rate of 5% per annum from the day following this Judgment to the day of full payment.

Counterclaim: Paragraph 1 of Paragraph 1 of this Article, the plaintiff shall pay to the defendant 30,00,000 won as consolation money, and 20% per annum from the day following this decision to the day of full payment.

1. Determination as to the claim for divorce and counterclaim damages against each principal lawsuit and counterclaim

A. Facts of recognition

1) The Plaintiff and the Defendant are married couple who completed the marriage report on June 3, 1968.

2) The plaintiff and the defendant have undergone a long-term conflict, and eventually, the plaintiff was suffering from house around February 2, 2010, and around that time, the plaintiff has been suffering from house.

[Ground of recognition] Each entry in Gap evidence 1 and 2 (including each number), and the purport of the whole pleading

B. Determination

1) A principal lawsuit and a counterclaim for each divorce: A ground under Article 840 subparagraph 6 of the Civil Act exists.

2) Claim for solatium consolation money: None of the reasons

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances taken into account, including the fact that the plaintiff and the defendant are living separately for a long time, that both the plaintiff and the defendant want to divorce, and that they seem unlikely to recover trust among themselves and continue their marital life.

(2) The liability for the failure of marriage is both parties.

The Plaintiff cited a long-term separation from the Defendant’s harassment and assault against the Plaintiff as grounds for divorce. The Defendant cited the Plaintiff’s verbal abuse, assault, misconduct, running away from home as grounds for divorce.

As seen earlier, the Plaintiff and the Defendant were living separately for a long time, and the Defendant committed an act of neglecting to recover the relationship with the Plaintiff, but the Defendant also neglected to endeavor to recover the relationship with the Plaintiff. Considering the fact that the conflict situation between both parties appears to have led to the other party, rather than putting the other party up with love and care, and that the conflict has deepened, it is reasonable to view that the Plaintiff and the Defendant’s marital relationship reached a failure due to the fault of both parties, and that the degree of responsibility of both parties is equal.

In addition, the grounds for the remaining failure of the Plaintiff and the Defendant’s assertion are not sufficient to acknowledge the fact that only the evidence submitted to this court is generated, or it is difficult to deem that the cause of marriage dissolution itself was the cause of marriage dissolution, and thus, it is not acceptable to accept the grounds for divorce of

C. Sub-determination

Therefore, based on the principal lawsuit and counterclaim, the plaintiff and the defendant shall be divorced, but the defendant's counterclaim shall not be accepted.

2. Determination on the claim for division of property in the principal lawsuit

A. Details about the formation of the property;

1) The Plaintiff was a driver of large trucks, urban buses, village buses, etc. during the marriage period, and the Defendant was in exclusive charge of raising household affairs and children.

2) On April 27, 2011, the Plaintiff and the Defendant acquired around 1982, **Gu** Dong** apartment** Dong** Dong***, as the apartment was reconstructed, ** on April 27, 201, *********** (hereinafter referred to as "****************) **** in the name of the Defendant. During that process, the Plaintiff and the Defendant’s head of South-NorthCC paid KRW 170,00,000,00.

3) On April 23, 2002, the defendant acquired 165,00,00 won and disposed of 165,00,00,00 won around July 31, 201 after the acquisition of * the Busan*** in Dong********* apartment (hereinafter referred to as "******** apartment)**.

4) The defendant acquired **** apartment************* head of 181,50,000 on April 19, 2012.

5) On November 11, 2014, the Defendant leased the RoE as above************** this********** the ** KRW KRW 240,000,00.

[Ground of recognition] The written evidence Nos. 5 through 8, Eul Nos. 4 and 8 (including each number, if any) and the purport of the whole pleadings

(b) Property and value to be divided;

1) Property subject to division: Property subject to division of property following a judicial divorce and its amount shall be determined on the basis of the date of the closing of arguments at the fact-finding court in a divorce lawsuit (see Supreme Court Order 2000Du13, May 2, 2000). The property subject to division of property and its amount, based on the date of closing of arguments at the divorce lawsuit in this case, are as stated in the attached sheet of details of the property division.

As to this, the plaintiff has the above-mentioned*********** the above*********** because there is no evidence to acknowledge it, the above argument is without merit.

On the other hand, the defendant asserts that the property should be excluded from the property division because there is special circumstance, such as that the change in the property relationship occurred between the date of marriage and the date of the closing of argument after the marriage has been broken off, the changed property should be excluded from the property division (see Supreme Court Decision 2013Meu1455, Nov. 28, 2013), but it is difficult to view that the above property division has no reason to view that the above property has been acquired after the marriage after comprehensively considering the process of the above property formation, the developments leading up to the acquisition of the pertinent property, and the extent of revenue and living expenses contributed by the plaintiff and the defendant during the marriage period.

2) The value of the property to be divided;

A) Plaintiff’s net property: 0 won

B) Defendant’s net property: 113,000,000 won

C) Total amount of the net property of the original and the Defendant: 113,00,000

(c) Ratio and method of division of property;

1) Division ratio of property: Plaintiff 50%, Defendant 50%

[Ground of determination] The plaintiff and the defendant's contribution to the formation and maintenance of the property subject to division as seen above are determined. The defendant is in exclusive charge of household affairs and childcare so that the plaintiff can concentrate on his workplace life; the process, period and failure of mixed life; the circumstances shown in the argument of this case, such as the plaintiff and the defendant's age; the future income activity of the plaintiff and the defendant, etc.

2) The method of division of property: considering the name and form of the property to be divided, the grounds for acquisition and use of the property, the convenience of division, etc., the Defendant’s payment to the Plaintiff of the shortage of the amount to be reverted to the Plaintiff according to the above division ratio.

3) Property division amount to be paid by the Defendant to the Plaintiff: 56,00,000 won

【Calculation Form】

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

Total net property 113,00, 000 won x 50% = 56,500,00 won

(2) Amount under paragraph (1) after deducting the Plaintiff’s net property.

56, 500, 000 won - 0 won = 56,500,000 won

[3] Division of property that the Defendant pays to the Plaintiff

② The amount set forth in the above paragraph is less than 56,00,000 won

E. Sub-determination

Therefore, the defendant is obligated to pay the plaintiff 56,00,000 won as division of property and damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from the day after the judgment became final to the day of full payment.

3. Conclusion

If so, the claim for divorce between the principal lawsuit and the counterclaim is justified, and the counterclaim is dismissed as it has no merit, and the counterclaim is dismissed as it is, and the claim for division of property of the principal lawsuit shall be determined as above. It is so decided as per Disposition.

Judges Do-constition

Judges Kim Jin-jin

Judges Park Jong-hee