2019Dhap20165 (Divorce, etc.)

2019Dhap201672 (Counterclaims), divorce, etc.

A

Section B.

C

October 17, 2019

October 31, 2019

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

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 10, 663, 013 as consolation money, 5% per annum from December 16, 2017 to October 31, 2019, and 12% per annum from the next day to the date of full payment.

3. Plaintiff (Counterclaim Defendant)’s remaining claim for consolation money and Defendant (Counterclaim Plaintiff)’s counterclaim divorce claim are dismissed, respectively.

4. Property division:

A. The Plaintiff (Counterclaim Defendant) received from the Defendant (Counterclaim Plaintiff) the payment of KRW 285,00,000 from the Defendant (Counterclaim Plaintiff) and at the same time, to the Defendant (Counterclaim Plaintiff).

1) 1/2 of the apartment units listed in the separate sheet No. 1 list shall carry out the registration procedure for transfer of ownership based on the division of the fixed date property of this judgment, - - - [Attachment No. 2 omitted]

2) With respect to the share of 99% among vehicles listed in the separate sheet No. 2 list, the procedure for registration of transfer of ownership due to the division of property on the date of this judgment;

B. Defendant (Counterclaim Plaintiff) paid KRW 285,00,000 to Plaintiff (Counterclaim Defendant) at the same time upon receipt of the procedures for the registration of ownership transfer and the registration of ownership transfer as described in paragraph (a) above from Plaintiff (Counterclaim Defendant).

5. The plaintiff (a counterclaim defendant) shall be designated as a person with parental authority and a custodian of the principal of the case.

6. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) the amount of KRW 850,00 per month from November 1, 2019 to October 2024 as the child support for the principal of the instant case at the end of each month, starting from November 1, 2019 to the date of October 2024.

7. The Defendant (Counterclaim Plaintiff) may interview the principal of the case before the principal of the case becomes adult as follows. The Plaintiff (Counterclaim Defendant) shall actively cooperate with the above visitation, and shall not interfere with the interview.

(a) Date;

1) Secondly, 4: 00 to 18:00 on the following day.

2) 12: 00 to 18:0 on the day following the New Year's Day from 00 to 00 on the New Year's Day, and 12:0 to 18:0 on the following day from 00 to 18:0 on the pool.

3) 4 5 gambling in each of the instant principal’s summer and wintering periods.

(b) Place: A place designated by the Defendant (Counterclaim Plaintiff);

(c) Method: The method by which the defendant (Counterclaim plaintiff) delivered the principal of the case at the residence of the principal of the case or at the place promised with the plaintiff (Counterclaim defendant) and exchanged the case in an appropriate way and then delivered the principal of the case at the same place;

D. The Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) may, through prior consultation, change the schedule, place, and method of the visitation right, and conduct the visitation right by respecting the intent and welfare of the principal of the case as much as possible.

8. The costs of lawsuit shall be borne by each party.

19.Paragraphs 2 and 6 can be provisionally executed.

Main Action: Disposition Nos. 1 and 5 of this case and 12% per annum from the following day to the date of full payment (hereinafter “Defendant 1”) to the Plaintiff (Counterclaim Defendant 20,000,000 won as consolation money, and from August 17, 2017 to the date of delivery of a duplicate of this case to the date of full payment, respectively.

The money calculated shall be paid with the division of property, and shall be paid with 231, 152, 974 won, and 5% interest per annum from the day following the day when this judgment became final to the day of full payment, and 2,00,000 won shall each be paid on the first day of each month from the day after the day when this judgment was rendered to the principal of the case until the day when the principal of the case reaches his majority.

Counterclaim: The plaintiff shall be divorced from the defendant. The defendant shall be designated as the person in parental authority and the person in custody of the principal of the case. The plaintiff shall pay to the defendant the 1,00,000 won per month from the day this judgment became final to the day when the principal of the case reaches his majority.

A principal lawsuit and a counterclaim shall also be deemed to be a counterclaim.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report on July 1, 2004, and have a minor case principal as a child between them.

B. Around August 17, 2017, the Defendant sent a Kakao Stockholm message to the Plaintiff, “On the Defendant’s request, 1 year, and 1 year, and 1 year, and ○○ prior to I am am s am s s ams s ams s ams s ams s ams s ams s ams ams s ams s ams s amss ams s ams s ams ams s ks ams ks ams ams s ks ams ks ams s ams ss ams ss ams ss ams ss s

C. On September 2, 2017, the Defendant and the Defendant demanded that the Plaintiff be divorced from around September 2, 2017.

D. On December 6, 2017, the Plaintiff filed the instant lawsuit against the Defendant and the Government. On December 15, 2017, the Plaintiff paid KRW 30 million to the Plaintiff as consolation money. On February 9, 2018, the Plaintiff voluntarily withdrawn the lawsuit against the Plaintiff on February 9, 2018.

E. On January 18, 2018, the Defendant: (a) made food with the date of justice, and written a life card with the content that he/she would save and love the date of birth.

F. The Plaintiff and the Defendant have been separated from March 2018 to March.

[Ground of recognition] Gap evidence Nos. 1 through 5, 8, 9, 11, 16, Eul evidence Nos. 8 (for each number, including the virtual number; hereinafter the same shall apply), each statement of Nos. 1 through 5, 8, 9, 11, 16, and Eul evidence Nos. 8, the result of this court's order to submit financial alien information to ○○ Bank on June 13, 2019, the whole purport of the pleadings as a whole.

2. Determination on the claim for divorce and consolation money

A. Determination on the principal lawsuit and counterclaim divorce claim

In addition to the above facts of recognition, the marriage between the Plaintiff and the Defendant is deemed to have been broken down due to the principal mistake of the Defendant, taking into account various circumstances, such as the fact that both the Plaintiff and the Defendant wished to divorce, they are separated from March 2018, and that there seems to be no possibility to continue their marital life in the future as they lose trust in each other, and that the Defendant has committed justifiable acts and maintained their relationship with the Defendant even after the Plaintiff brought the instant lawsuit.

Therefore, the plaintiff's claim for divorce on the principal lawsuit is reasonable under Article 840 (1) and (6) of the Civil Code, and the defendant's claim for counterclaim divorce is without merit.

B. Determination on the claim of consolation money

1) Defendant’s duty to pay consolation money and amount thereof

The defendant is obligated to pay consolation money for mental distress sustained by the plaintiff due to the failure of marriage. The amount shall be determined as KRW 40 million in consideration of all the circumstances shown in the arguments, such as the cause and degree of responsibility of the dissolution of marriage as seen earlier, the period of marital and intentional marriage, age, occupation and economic power, etc.

2) Determination as to the defendant's defense of payment

The tort liability owed by either spouse or a third party who committed an unlawful act is jointly and severally liable as a joint and severally liable, and one of the joint and severally liable persons who jointly and severally liable has the effect of joint immunity for all of the obligors within the extent of the amount repaid. On December 15, 2017, the Plaintiff paid 30 million won as solatium to the Plaintiff on December 15, 2017 is as seen earlier. As such, the Defendant’s obligation to the Plaintiff against the Plaintiff was jointly and severally discharged and extinguished from the equal amount.

Meanwhile, the liability for consolation money due to the failure of marriage is a tort liability, in principle, and even if there is no separate notice of performance, the liability is established as a tort in light of the concept of fairness, and damages for delay occur. Therefore, the Defendant’s liability for consolation money was created around August 17, 2017, when the Plaintiff becomes aware of the Defendant’s wrongful act, and the marriage was broken down. The damages for delay also occurred from the initial date.

Therefore, the repayment amount of KRW 30,00, and KRW 000 for the defendant's obligation of consolation money was appropriated for 663,013 won ( = 40,00,000,000 x 5% x 5% x less than 121 days x less than KRW 365, and less than KRW 987 ( = 30,00,000 - 663,013) from August 17, 2017 to December 15, 2017 for the defendant's obligation of consolation money, and the remainder is 29,336,987 won ( = 30,00,000, 00 - 663,013) from the equal amount as the principal of the defendant's obligation.

Therefore, the Defendant’s obligation against the Plaintiff remains 10, 663, 013 won ( = 40,00,000 won - 29,336, 987 won) and damages for delay from December 16, 2017. The Defendant’s defense of performance is with merit within the scope of the above person’s set.

C. Sub-committee

Therefore, the plaintiff and the defendant are divorced by the principal lawsuit, and the defendant is obligated to pay to the plaintiff the consolation money of KRW 10,63,013 as well as damages for delay calculated by the rate of 5% per annum under the Civil Act and 12% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

3. Determination as to the claim for division of property

(a) Details about the formation and maintenance of property;

- - - Other

(b) Property and value to be divided;

1) Property subject to division: Attached Table 3 is as indicated in the “Attachment 3” list of property subject to division (the object and value of property division shall be determined on the basis of the date of closing of argument in this case: Provided, That in cases where consumption or concealment is available as money and where there is a possibility of overlapping sum if the base point differs, the time when the plaintiff becomes aware of the above fact committed by the defendant, and the marriage is deemed to have reached the failure due to the failure of marriage, it shall be presumed that the money has existed on the basis of around August 17, 2017, and the subject and value of the division of property shall be determined by presumption that the money has existed. However, in cases where the plaintiff and the defendant make a statement with the same value,

2) Determination as to the Plaintiff’s assertion of unjust enrichment: - - [Attachment] - -]

3) The value of the property to be divided;

A) Plaintiff’s net property: 221, 426, 241 won

B) Defendant’s net property: 537,257,720 won

C) the aggregate of the net property of the original and the Defendant: KRW 758, 683, 961

C. Judgment on the parties’ assertion

Attached Table 3 is as shown in the column of "the principal and judgment of each party" in the detailed statement of the property subject to division and the detailed statement of the non-recognized property.

(d) Ratio and method of division of property;

1) Division ratio: Plaintiff 45%, Defendant 55%

[Ground of determination] The degree of contribution of the Plaintiff and the Defendant to the formation and maintenance of the property subject to division as above, and the process and duration of marital life, and the income, property, and economic power of the Plaintiff and the Defendant.

2) The method of division of property: taking into account various circumstances revealed in the pleadings in the instant case, such as the parties’ intentions, the ownership of the property subject to division prior to the acquisition and maintenance, the circumstances leading to the use of the said property, etc., the Plaintiff transferred 9% of the shares in the instant apartment and the vehicles listed in the separate sheet No. 2 (hereinafter referred to as the “automobile”) among the instant apartment, to the Defendant, and the remainder of the property subject to division is reverted to the Plaintiff as it is in the current name, and the Defendant pays to the Plaintiff the remainder of the property subject to division, which is short of the amount to be reverted to the Plaintiff according to the said division ratio, and in principle, the respective obligations of the Plaintiff and the Defendant are in a concurrent performance relationship.

3) Property division amount that the Defendant shall pay to the Plaintiff: 285,000,000 won

【Calculation Form】

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

Total net property 758, 683, 961 won x 45% = 341, 407, 782 won (turf less than won)

(2) From the amount of paragraph (1) above, 1/2 of the apartment of this case shall be deducted from the Plaintiff’s net property.

Sector An amount calculated by adding 99% of the instant vehicles to the value of shares

285, 621, 541 won ( = 341, 407, 782 won - 221, 426, 241 won + 130, 000, 000 won +

35, 640, 000

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

② The amount under the above paragraph is 285,000,000 won which deducts a little amount under the above paragraph

E. Sub-committee

Therefore, as a result of division of property, the Plaintiff is obligated to pay to the Defendant KRW 285,00,000,000 to the Plaintiff on the following grounds: (a) the ownership transfer registration procedure based on the property division based on the fixed date of the judgment; and (b) the ownership based on the property division procedure based on the fixed date of the judgment with respect to the share of KRW 99 out of the instant apartment.

4. Determination as to the designation of a person with parental authority or a custodian, child support, and visitation right (ex officio)

(a) Designation of a person with parental authority and a custodian;

When comprehensively taking into account all the circumstances revealed in the arguments of this case, such as the circumstances leading up to the marriage and failure of the plaintiff and the defendant, the friendly density with the principal of this case, the age of the principal of this case, the custody status up to the date, and the intention of the parties, it is reasonable to designate the plaintiff as a person in parental authority

(b) Child support;

1) Occurrence of obligation to pay child support

Since the defendant is the mother of the principal of this case and is responsible for fostering the principal of this case together with the plaintiff, he is obligated to pay the child support to the plaintiff.

2) Amount of future childcare expenses to be paid by the Defendant

The defendant shall be determined to pay to the plaintiff at the end of each month the amount of KRW 850,00 per month from November 1, 2019, which is the day after the date of this judgment, to the day before the principal of this case reaches the gender year.

[Calculation Basis] The age and parenting status of the principal of the case; age, occupation and income, property, and livelihood of the Plaintiff and the Defendant; details of the person’s prior disposition on January 28, 2019; the intent of the parties; etc.

(c) Interview (ex officio).

The defendant, as a non-cushion-child, has the right to interview with the principal of the case, so long as it does not go against the welfare of the principal of the case, the defendant shall determine the time, time, place, etc. of visitation negotiation as described in Paragraph (7) of the Disposition, taking into account all the circumstances revealed in the arguments of the case, including the age, rearing situation of the principal of the case, intent of the parties concerned, and the Plaintiff's home and home and home time

5. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit and the claim for consolation money within the scope of the above recognition shall be accepted respectively for the reasons, and the remaining claim for consolation money and the defendant's counterclaim divorce against the principal lawsuit shall be dismissed for each reason. It is so decided as per Disposition with respect to division of property, designation of a person with parental authority and custody, child support, and visitation right as above.

Judges Park Jae-won

Judges Lee E-young

Judges Na Jae-young