2019u2075 (principal office) Divorce

2019u20782 Divorce, etc.

A

Section B.

C

Busan Family Court Decision 2017Ddan204328 (main office), 206492 decided June 28, 2019

(Counterclaim) Judgment

January 8, 2020

February 12, 2020

1. All appeals filed by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are dismissed. The costs of appeal are assessed against each party.

1. Claims;

The principal lawsuit: The plaintiff (the counterclaim defendant; hereinafter referred to as the "Plaintiff") and the defendant (the plaintiff; hereinafter referred to as the "defendant") by the principal lawsuit.

D) The defendant shall be divorced. The defendant shall pay consolation money of KRW 10 million to the plaintiff and the lawsuit of this case to the plaintiff.

Property division shall be paid at the rate of 15% per annum from the day following the service day of the head to the day of full payment.

D. The registration procedure for transfer of ownership shall be implemented with respect to shares of 1/2 of the real estate listed in attached Form 1. The principal of the case

The plaintiff shall be designated as the person with parental authority and the custodian, and the defendant shall pay the plaintiff the child support of the principal of the case.

50,000 won per month from the day following the delivery of a complaint to April 13, 2021.

Counterclaim: The plaintiff and the defendant are divorced by counterclaim. The plaintiff is a consolation money of 30 million won to the defendant.

The amount calculated at the rate of 15% per annum from the judgment of this case to the day of full payment.

19,974,082 Won 119,974,082 from the date on which the judgment of this case became final and conclusive

(D) Payment of the amount calculated by the rate of 15 percent per annum until the day of full payment;

Defendant A is designated. The Plaintiff is the Defendant as the child support for the principal of the case, from May 1, 2017 to December 31, 2017.

up to 10 million won per month, and 1.2 million won per month from January 1, 2018 to April 30, 2021.

2. Purport of appeal;

The plaintiff: The part against the plaintiff in the judgment of the first instance shall be revoked. The plaintiff and the defendant are divorced by the principal lawsuit.

C. Defendant 1,00,000 won and the day following the delivery of the complaint of this case to Plaintiff 1,000,000 won as reference materials

The amount shall be paid at the rate of 15% per annum from the date of full payment to the date of full payment, and the division of property shall be listed in attached Form 1.

1/2 shares of real estate shall be registered. The person with parental authority of the principal of the case and the person with parental authority of the principal of the case.

The defendant shall designate the plaintiff as the custodian, and the defendant shall deliver the complaint of this case to the plaintiff on April 2021.

13. up to 13. Payment of KRW 500,000 per month at the fostering expense of the principal of the case. The defendant's counterclaim is dismissed.

Defendant: The part against the Defendant regarding the mid-term materials of the judgment of the first instance shall be revoked, and the Plaintiff shall be the Defendant.

It shall be calculated at the rate of 12% per annum from the judgment of this case to the date of full payment.

L. L. L. L. L. 1)

The main claim and counterclaim shall be considered as thickness.

1. Facts of recognition;

가. 혼인 생활 및 파탄의 경위 ( 1 ) 원고 와 피고는 2001. 1.20.혼인신고를 마치고 슬하에 사건본인을 두었다. ( 2 ) 피고 는 결혼직후부터 신장투석을 하던 원고 모친과 함께 살았는데, 원고 모친은 피고 에게 수시로욕설과 폭언을 하였고, 새벽 2~3시까지 TV를 크게 틀어놓고 방문을 열어 놓아 당시 임신 중이던 피고로 하여금 항상 수면 부족에 시달리게 하였다. ( 3 ) 원고 와 피고는 약 1년 후 분가하였으나, 원고는 매일 모친을 찾아갔고, 매주 주말 에는 피고 와 함께 모친 집에서 잠을 잤다. 원고는 모친의 상태가 나빠지면 피고가 제대로 모시지 못한것이라며 피고를 탓하였고, 원고 모친 문제로 피고와 다툰 뒤에는 며칠 또는 몇 주씩 집을 나가버리거나 생활비 지급을 중단해 버렸다. ( 4 ) 원고 가 2006.경 다른 지역으로 발령 이 나자 피고가 원고를 대신하여 신장투석을 마친 원고 모친 을집까지 모셔다 주었고, 점심 및 저녁식사를 차려드렸다. ( 5 ) 원고 모친 이2008.경 수술을 받게 되어 혼자 생활하기 어렵게 되자 2009.경부터 다시 원 · 피고 와 합가하였다. 당시 원고의 형 과 누나는 모친을 모시기 꺼려하였다. ( 6 ) 피고 는 원고모친과 24시간을 함께 하면서 다시 원고 모친의 폭언에 시달렸다. 원고 모친 은 2010. 6.경 몸져누워 있는 피고에게 "며느리노릇을 제대로 못해서 아들이 밥 도 못 먹고 회사 에간다. 저렇게 못된 년 이 있냐."고 소리를 질렀고, 아픈 몸으로 제사 음식 을 준비한 피고를 두고 친척들에게 "저거 때문에 내 아들이 집 에 안 들어온다."며 비난 하였다. 피고는 폐렴진단 을 받고 친정에 가서 일주일간 지내다 집으로 돌아왔는데 , 원고 는 그 기간동안 생활비를 지급하지 않았다. ( 7 ) 원고 가 2011.경 재차 타지역으로 발령을 받게 되면서 피고는 또다시 혼자 원고 모친 을 간호 하게되었다. 원고 모친은 사소한 일에도 꼬투리를 잡으며 온갖 폭언 을 하였고 , 원고 는 이를하소연하는 피고를 이해해주지 않은 채 자신의 모친을 두둔하며 피고 와 다툼 을 하였다. 원고는 2011. 6.경 피고가 자신과 싸우고 한 달 동안 밥 을 안챙겨 준다는 이유로 신용카드를 정지시키고 생활비 지급을 중단하였다. ( 8 ) 원고 모친 이2014.12.경 고관절 골절로 2~3달 병원에 입원한 후 의식도 제대로 없는 상태 에서 퇴원하게 되었다. 피고는 요양병원에 모시자고 하였으나 원고와 원고 의 형제 들이 거부 하여다시 피고가 모시게 되었다. ( 9 ) 원고 모친 은혼자 거동할 수 없어 밤낮없이 피고를 불렀고, 원고는 피고에게 원고 모친 의 대소변을 처리하도록 하였다. 원고는 요양보호사를 하루 4시간만 쓰게 하였는데 , 피고 가 시간을 늘려달라고 요구하자 하루 4시간을 초과하면 정부지원을 받을 수 없다는 이유로 이를 거절하였다. 원고 모친은 1992.4.부터 유족연금을 수령하고 있었는데 , 2015. 1. 부터는 월 1,143,420원씩 지급받고 있었다. ( 10 ) 원고 는 2015.7.9.다시 부산으로 발령을 받아 집으로 돌아왔는데, 2015. 7. 18. 경 사건 본인 이 등교하면서 원고 모친에게 인사를 하지 않았다며 사건본인에게 화 를 내었다. 피고 는 그 문제로 원고와 다툰 후 집을 나와 버렸다. ( 11 ) 피고 는 2017.3.23.경 다시 집으로 돌아왔다. 피고는 원고가 술 에 취해 자고 있는 모습 을 보자 화가 나서 "내가 10년 동안 겪었던 것을너도 하루만 당해봐라" 며TV 를 켜서 원고 를 깨웠고,다음날에도 TV를 켜는 문제로 원고와 몸싸움을 하였다. ( 12 ) 원고 의 모친은 2017.3.28.사망하였다. 원고는 사건본인에게만 이를 알렸고, 피고 에게는 장례 절차에 관하여 아무런 언급도 하지 않은 채 며칠 간 집을 비워달라고 하였다. 피고 가 2017. 4.3.경 다시 집으로 돌아오자 원고가 짐을 싸서 집을 나갔고, 2017. 5. 4. 이 사건본소를 제기하였다.

B. The Plaintiff (1) was appointed as a public official on April 10, 1990 and was in office, and is currently raising income of at least six million won per month.

(2) On December 4, 2001, the plaintiff and the defendant completed the registration of ownership transfer in the name of joint real estate listed in the attached Table 2 (hereinafter "the apartment of this case"). (3) The plaintiff and the defendant completed the registration of ownership transfer in the joint name as to real estate listed in the attached Table 1 (hereinafter "the building of this case") on November 9, 201. At the time of the registration of ownership transfer in the joint name, the total amount of KRW 140 million of the deposit for the lease of this case, KRW 12 million borrowed from the defendant's living, KRW 25 million borrowed from the national bank of this case on October 14, 201, KRW 500,000,000 won, KRW 3500,000 won loaned from the national bank of this case as security, KRW 150,000,0000,0000,0000 won, and KRW 16,57,000,000,0000 won,000.

[Ground for recognition] Fact-finding without dispute, Gap evidence Nos. 2,97, 11, 16, 17 (if there are serial numbers, including branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 4, 7, 12, 16, 17, 18, 20, 28, and 29, fact-finding inquiry by the Public Official Pension Service on July 21, 2017, investigation by the family affairs investigator, investigation report by the family affairs investigator, and purport of the whole pleadings;

(a) Principal lawsuit and counterclaim divorce claim: Dismissal of the principal lawsuit (the spouse of the principal lawsuit), and acceptance of the counterclaim (Article 840 subparag. 3 and 16 of the Civil Act);

B. Claim for the principal lawsuit and counterclaim data: Dismissal of the principal lawsuit and partial acceptance of the counterclaim

【Grounds for Determination】

○ Recognition of the failure of marriage relationship: Various circumstances shown in the pleadings, such as the content and degree of conflict between husband and wife revealed in the above recognition, and the fact that the plaintiff and the defendant were separated from April 2017, and seek a divorce by the principal lawsuit and counterclaim in this case, shall be considered.

○ Liability for the failure of marriage: According to the above fact of recognition, the responsibility for the failure of the marriage of this case is against the Plaintiff, who has been taking into account or has not been respected by the Plaintiff’s mother and father-child, for a long time.

In this regard, the plaintiff asserts that the marriage relationship between the plaintiff and the defendant was broken down because the plaintiff did not appropriately gather the mother of the plaintiff even though the defendant agreed on the mother's mother at the time of marriage and married to the defendant at the time of marriage.

Although the Plaintiff seems to have asserted as the premise that the Defendant’s frightening of the Plaintiff’s mother seems to be a natural duty derived from the marital relationship, it cannot be deemed that the Defendant’s frightening of the Plaintiff’s mother and the Defendant’s frighting of disease is a spouse or frighting of performing the Plaintiff’s mother in any case. According to the above facts, when the Defendant’s frighting of the Plaintiff’s mother with frighting of frightening, it is difficult to find that the Plaintiff’s frighting of mental suffering or frighting of difficulty due to verbal abuse and illness of frightening, even though she knew or could have known that frightening of the Plaintiff’s mother, the Plaintiff’s frightening and frighting of the Defendant’s mother, or that the Defendant’s frighting of frighting of the Plaintiff’s mother and frighting of the Plaintiff’s spouse, even if frighting the Plaintiff’s frighting of the Plaintiff’s mother and fright.

The amount of consolation money: The circumstances and degree of responsibility of the failure of marriage, and the period of marriage between the plaintiff and the defendant. The circumstances shown in the arguments, such as age, occupation, and economic power, are considered.

The plaintiff is divorced by counterclaim, and the defendant is dismissed by the reason that the plaintiff's divorce and the claim for consolation money is without merit. The plaintiff is obligated to pay consolation money to the defendant at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 29, 2019 to the date of full payment as requested by the defendant.

3. Determination as to each claim for partition of property

A. In principle, the standard point of time of property division is based on January 8, 2020, which is the date of the closing of argument in a divorce lawsuit. However, in a case where there is a risk of double-covering if consumption or use is concealed as money and if the standard point of time differs, the marriage relation has reached the failure, and even if there is no clear proof as to the fact that the money possessed by the parties was used for common life of the married couple after this point of time on March 31, 2017, it shall be presumed that the money is still existing and set the subject and value of property division.

However, if the value of the plaintiff and the defendant are to state or there is no explicit objection against the value expressed as a result of the order to submit financial transaction information, etc., the value shall be determined accordingly.

(b) Property and value subject to division;

Attached Table 3 is as shown in the list of the property in division (as part not mentioned separately below, it is deemed that both the plaintiff and the defendant's argument are rejected).

1) According to the inquiry of the Plaintiff’s pension amount on July 24, 2017 to the chief director of the Public Officials Pension Service, the Plaintiff, who was employed as a public official from April 10, 1990 to July 20, 2017, holds the right to receive retirement benefits equivalent to KRW 304,231,30 in total for the period of service with the Defendant from April 20, 2017 (328 months). The Plaintiff requires a certain period of service to receive retirement benefits, and the Plaintiff’s cooperation was deemed to have contributed to the receipt of the retirement benefits. Accordingly, it is difficult to view that the Plaintiff had any amount of retirement benefits corresponding to the remaining period of service, excluding the period of marriage, among the period of marriage, from around 10, 1990 to around 20, 2017. The Plaintiff’s retirement benefits also should be included in the Plaintiff’s cooperation with both spouses, and thus, should be subject to division of property.

As to this, the Plaintiff asserted that the actual period of marriage should be reduced to 174 months and that the amount of pension to be divided should be calculated. However, the Defendant continued to contact with the instant principal during that period and was in charge of part of the role of childcare, such as the instant principal’s school life and education, etc. In addition, it is reasonable to deem that the marital life of two persons has been maintained even during that period, and that the marital relationship has been broken down on or around March 31, 2017. Accordingly, the Plaintiff’s allegation is rejected.

D. In addition to the above facts and the aforementioned evidence, the following circumstances can be acknowledged as to the degree of contribution between the Plaintiff and the Defendant, by adding to the purport of the entire pleadings. Of the real estate that accounts for a considerable portion of the net property of the Plaintiff and the Defendant, the instant building and the instant apartment are borne by the Plaintiff and the Defendant, half of the purchase price, etc., and the contribution of the two parties to the formation of the principal property of the Plaintiff and the Defendant is equal.

② The Plaintiff, while serving as a public official, has earned income of at least 6 million won per month, while the Defendant dedicated to domestic affairs and childcare, supported the Plaintiff’s mother while living together. When the Plaintiff did not pay living expenses, the Plaintiff contributed significantly to the maintenance of married couple’s community life during the marriage period by appropriating the income obtained from the Defendant, such as English and foreign language, when the Plaintiff did not pay the living expenses.

③ Although the Plaintiff’s contribution to the formation of property is much higher than the Plaintiff’s contribution to the property during the marriage period, the contribution to the formation of property cannot be determined simply on the basis of income activity or income amount. As to the excess of efforts that cannot be converted into money, such as family affairs and childcare, the contribution to the division of property ought to be actively included in the contribution to the division of property by recognizing the value of the intangible property. The Defendant not only took full charge of domestic affairs and childcare during the marriage period exceeding 16 years, but also raised the Plaintiff’s mother’s flick and flick child during the marriage period. In the absence of the Defendant’s sacrifice and contribution, the Plaintiff’s assertion is unacceptable in that it is questionable whether the Plaintiff could have obtained the current position and income.

④ Furthermore, the Plaintiff frequently suspended the payment of living expenses to the Defendant, and during that period, the Defendant was able to make a living by his own income activities. During that period, the Defendant was unable to contribute to the Plaintiff’s income activities and the maintenance of the life of the married couple. 5) The court should take into account not only the liquidation of the property relationship achieved during marriage but also the support factors such as consideration of the parties’ livelihood security after divorce. Although the Defendant was on the part of a nurse for five years, the Defendant was on the part of a nurse for five years after marriage, and was on the part of the mother’s family, childcare, and the mother’s salary. On the other hand, the Plaintiff continued to accumulate his career in spite of the circumstances such as the Defendant’s issuance of local orders on several occasions, and the Plaintiff was able to continuously obtain considerable income including a stable workplace and pension.

If Defendant A continued to work, it appears that such opportunity had been lost due to the back of Plaintiff, even though he could have been able to achieve the career and income that was not the Plaintiff. Accordingly, the difference between the two persons after divorce and the difference between the career and the property will be more severe. Therefore, such circumstances need not be considered. 2) The ratio of division of property: Plaintiff 50% and Defendant 50%.

[Based on the judgment] Further to the above circumstances, the method of dividing the property of this case owned under the joint name of the plaintiff and the defendant, such as the process of acquiring and using the property subject to division, the degree of contribution of the plaintiff and the defendant to its formation and maintenance, the age of the plaintiff and the defendant, occupation, and the process and duration of marital life, etc., shall be considered as the name and form of the property subject to division, the process of acquisition, convenience of division, and the current status of use: The building of this case owned under the joint name of the plaintiff and the defendant shall be attributed to the plaintiff's sole ownership, and the apartment shall be attributed to the defendant's sole ownership, and the deficient part of the amount ultimately attributable to the plaintiff according to the above division ratio shall be paid in cash to the plaintiff by the defendant: 38 million won:

【Calculation Form】

① The Defendant’s share of net property of the Plaintiff and the Defendant according to the division of property: KRW 516,414,693 ( = Total amount of net property of the Plaintiff and the Defendant 1,032,829,386 x 50%)

② The Plaintiff’s share in the instant apartment, and if the Plaintiff’s share in the instant apartment is transferred to the Defendant, the property of the Plaintiff and the Defendant

Plaintiff: 575,349,386 Won 282,50,000 + 185,50,000 won + 478,349,386 won + 457,480,000 won + 282,50,000 won + 554,480,000 won + 354,480,000 won ② The difference between the Defendant’s share of KRW 38 million (54,480,00 won – 516,414,693 won = 38,65,307,100 won)

Therefore, the Plaintiff is obligated to perform the registration procedure for ownership transfer with respect to the portion of the building 1/2 in this case as the cause of the division of the property on the date the judgment of this case became final and conclusive, and the Defendant is obligated to pay to the Plaintiff the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment of this case becomes final and conclusive to the day when the ownership transfer registration procedure for the portion of the apartment 1/2 in this case was conducted on the ground of the division of property.

4. Determination as to fostering of children

A. The reason why the person with parental authority, the custodian, and the visitation right present this part of the court is as stated in the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with the main sentence of Article 12 of the Family Litigation Act and the main sentence of Article 420 of the

(b) Child support;

The plaintiff and the defendant's age, occupation, financial status, income, and child support calculation table published by the Seoul Family Court and the defendant are to be divorced to the defendant of the plaintiff and the defendant, and they promised to give 1/3 of their monthly salary (Evidence 7-1), to give 2 million won per month (Evidence 7-7), to the principal of the case who is the first year of high school as of 2018, the child support for the principal of the case at least 1.6 million won per month (excluding the amount equivalent to the 3.5 million won per month per subject, excluding the English, Korean language education expenses, teaching materials expenses, etc.). At present, since the principal of the case is scheduled to enter the high school in the third year and to enter the university during the domestic year, and if it is determined that any more child support than the above amount is necessary, the child support for the principal of the case shall be determined as the child support for the principal of the case as the 1.5 million won per month.

The plaintiff asserts that it is unfair to pay KRW 1,50,00 per month in excess of the defendant's claim amount. However, Article 93 (2) of the Rules of Family Litigation does not order the performance of the obligation with respect to the claim seeking monetary payment, etc. beyond the purport of the claim. However, this provision does not apply to the case where the family court determines the matters concerning rearing for the welfare of the child. Thus, the plaintiff's order of priority is without merit.

Therefore, the Plaintiff is obligated to pay 20.7 million won (6 million won for unpaid child support from May 2017 to August 2017 + 14.7 million won for the difference between September 2017 and May 2019) to the Defendant at the instant principal’s expense for the future child support, and to pay 1.5 million won for the last day of each month from June 2019 to the date when the principal of the instant case reaches his/her adult age.

4. Conclusion

Therefore, the plaintiff's claim for divorce and consolation money against the plaintiff is dismissed as without merit. The plaintiff's claim for counterclaim divorce and part of consolation money against the defendant is accepted as reasonable, and the remaining counterclaim consolation money is dismissed as without merit. The judgment of the court of first instance is just in conclusion as to the division of property, designation of person with parental authority and custody, child support, and visitation right. Thus, all appeals concerning the plaintiff's principal lawsuit and counterclaim and the defendant's counterclaim are dismissed.

Judge Lee Il-ju

Judge O Sang-hun

Judges Dogdogia

1) Defendant sought payment of KRW 30 million against Plaintiff B, but the first instance court accepted KRW 20 million; and

In the purport of appeal, the payment of KRW 30 million is sought as the same as the purport of the claim, and the payment of the amount lost in the first instance trial is to be made.

of this chapter. The purpose of this section is to seek