2017Ddan200982. Divorce, etc.

2017ddan204540 (Counterclaim) Divorce and consolation money

A person shall be appointed.

A person shall be appointed.

April 10, 2018

May 1, 2018

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

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 50 million won as consolation money and 5% per annum from January 16, 2018 to May 1, 2018 and 15% per annum from the next day to the date of full payment.

3. All of the plaintiff (Counterclaim defendant)'s claim for divorce and consolation money against his principal lawsuit, and the defendant (Counterclaim plaintiff)'s claim for consolation money against his counterclaim is dismissed.

4. The Defendant (Counterclaim Plaintiff) performed the registration procedure for transfer of ownership based on the property division on the portion of 1/5 of the real estate indicated in the separate sheet as property division against the Plaintiff (Counterclaim Defendant).

5. Of the costs of lawsuit, the part resulting from the principal lawsuit shall be borne by Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Defendant) respectively.

6. Paragraph 2 can be provisionally executed.

1. Main elements;

Pursuant to the principal lawsuit, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) are divorced. The Defendant shall pay to the Plaintiff 30 million won as consolation money, 5% per annum from the day following the delivery date of the copy of the instant lawsuit to the day of the final judgment, and 15% per annum from the next day to the day of full payment. The Defendant shall pay to the Plaintiff 1/2 of the real estate indicated in the separate sheet for division of property, and shall implement the registration procedure for transfer of ownership on the ground of division of property as to the 1/2 of the real estate listed in the separate sheet.

2. Counterclaim;

The disposition No. 1 and the plaintiff shall pay to the defendant 150 million won as consolation money and 150 million won with 15% interest per annum from the day following the day of service of a copy of the claim and the application for modification of the cause of the counterclaim of this case to the day of complete payment.

The main lawsuit and counterclaim are also examined.

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

A. Facts of recognition

1) The Plaintiff and the Defendant are legally married couple who completed the marriage report on January 20, 1986, and they are married and married among themselves.

2) During the marriage period, the Defendant had been engaged in the business of manufacturing believerss, from around May 1993, the Defendant served in a foreign society’s company from around 1993, and lived in the Dong-dong branch. At present, the Defendant worked in the business of Vietnam, and has failed to return home to Korea more than 2 to 3 times a year, and is living in the company’s dormitory except in the family together with his family members, and most incomes were remitted to the Plaintiff.

3) At the time of operating a original cafeteria, the Plaintiff frequently contacted with “A” who was a guest, provided several types of meals and drinks, and provided a relationship with “A” with “A”.

4) The Defendant returned to the Republic of Korea on January 26, 2017 in order to hear, and confirm, the talking that the act of misconduct would be doubtful, from his children around January 2017.

5) The Defendant returned home on the day to the Plaintiff, and followed the conditions before and after the Plaintiff, and, until now, remains separate from the Plaintiff.

6) As a result of the analysis of the Plaintiff’s mobile phone, the Plaintiff and Party A sent a total of 237 text messages and 352 text messages from January 1, 2015 to January 2017. The Plaintiff confirmed that “I am in Flag”, “I am in Flag”, “I am in Flag,” “I am in Flag,” “I am in Flag,” “I am in Flag, I am in Flag,” and “I am in common with daily life.”

[Grounds for recognition] The types of evidence Nos. 1 to 8 (each number includes numbers; hereinafter the same shall apply) 1 to B, video, the purport of the whole pleadings

B. Determination on the principal lawsuit and counterclaim divorce claim

1) According to various circumstances, such as the above recognition and the fact that the plaintiff and the defendant agree to divorce by filing a principal lawsuit and counterclaim, the marriage between the plaintiff and the defendant has been no longer destroyed to the extent that it is difficult to recover it due to the plaintiff's improper act, which constitutes grounds for divorce by trial as prescribed by Article 840 (1) and (6) of the Civil Act.

2) Meanwhile, the Plaintiff asserts that the Defendant, on January 26, 2017, abused the Plaintiff’s face without discrimination, killed the Plaintiff’s face, and escaped rapidly between the Defendant and the Defendant, and that the Defendant was mainly responsible for the failure of marriage, such as assault, etc.

On January 31, 2017, the date of occurrence and injury of the certificate of injury submitted by the Plaintiff, contrary to its assertion, is indicated as the "on January 31, 2017," and the Plaintiff was subject to violence even though the Plaintiff submitted 'vehicle damaged photographs' or 'house and clothes' to the "house damaged photographs", the Plaintiff did not submit any photograph taken of the Plaintiff, and the Plaintiff's statement (B 5-2) on the background of the damage of the vehicle was insufficient to recognize its assertion by itself, so the Plaintiff's assertion is without merit (in addition, even if the Defendant's use of some violence to the Plaintiff, it is difficult to deem that such cause was the main cause of the failure of marriage between the Plaintiff and the Defendant).

3) Therefore, the defendant's counterclaim claim for a counterclaim is reasonable, and the plaintiff's claim for a divorce on the principal lawsuit as the responsible spouse is without merit.

C. Determination on the claim of consolation money and counterclaim

1) Claim for consolation money in principal lawsuit

The plaintiff is mainly responsible for the failure of the marriage and claims against the defendant for the compensation against the defendant. However, as seen earlier, the main liability for the failure of the marriage of this case lies in the cost. Thus, the plaintiff's claim for compensation against the defendant for consolation money against the defendant 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 at KRW 50,000,000, in consideration of various circumstances shown in the pleadings of the instant case, such as the health team, the period of marriage and family relations of the Plaintiff and the Defendant, the degree and duration of their father's act, the degree of contribution to the failure of marriage, and the degree of psychological suffering of the Defendant.

Therefore, the Plaintiff is obligated to pay damages for delay calculated by the rate of 5% per annum under the Civil Act until May 1, 2018, which is the date following the day on which the Plaintiff served a copy of the claim for the counterclaim of this case and the application for modification of the cause of the counterclaim of this case, upon the Defendant’s request, from January 16, 2018, as follows: (a) the Plaintiff is liable to pay damages for delay calculated by the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

2. Determination as to the claim for division of property

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

1) The Defendant transferred most incomes to the Plaintiff from May 1993 to January 2017 by serving in a foreign company. From 1993 to 1995, the monthly average of KRW 2.3 million was transferred to the Plaintiff. From 1993 to 1995, the monthly average of KRW 2.3 million was transferred to 3.65 million thereafter, and the monthly average of KRW 6.25 million was transferred to approximately KRW 1.31 billion.

2) On April 1, 2009, the Plaintiff and the Defendant purchased real estate listed in the separate sheet (hereinafter “the instant real estate”) in the name of the Defendant. The Plaintiff leased the entire first and second floors of KRW 38 million in total, monthly rent of KRW 650,00 (the Plaintiff’s total lease deposit was 28 million in total, monthly rent of KRW 450,000,000 and monthly rent of KRW 450,000 in total due to changes in the lease agreement between the Plaintiff and the Defendant, and the lease deposit, etc. was fully disbursed as repair costs, etc. of the instant real estate).

3) The Plaintiff used money and monthly rent revenue sent by the Defendant for children’s school expenses and living expenses. Around 2002, the Plaintiff opened and closed the original and original restaurant in the location of the Busan Chungcheongdong for four years, and reported the total amount of KRW 100 million to an AI disease. Around 2007, the Plaintiff again operated the original and the original restaurant for three years in the Gandong of Busan for three years, but reported the damage of KRW 100 million or more.

4) At present, the Plaintiff was only insured under its name with a total of KRW 1,676,223 (Seoul Bank KRW 7,789 + KRW 635,440 + Korea Bank KRW 1,032, 994) and several recommendations. It was confirmed that there was no particular property.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 6, 7, and 7, entry of evidence Nos. 7 and 7, entry of the Plaintiff’s submission of the list of property on July 11, 2017 submitted by the Plaintiff, entry of the list of property on July 18, 2017 submitted by the Defendant, and the purport of the body before oral pleadings

(b) Object and value of division of property;

Real Estate in the name of the defendant

However, the Plaintiff sought a division of property only for the instant real estate, and the Defendant does not claim a division of property. However, in the Plaintiff’s property list on July 18, 2017 submitted by the Defendant, the market price of the instant secondary movable property is KRW 180 million, but it is not confirmed that the instant secondary movable property wishes a division of shares without withdrawal of accurate appraisal procedures by both parties.

(c) Ratio and method of division of property;

1) Division ratio: Plaintiff 20%, Defendant 80%

[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: The defendant transferred most of the incomes during the marriage period to the plaintiff, and the fact that the amount would be a substantial amount is the common property of the plaintiff. However, the fact that the above real estate is currently the only common property of the plaintiff, the plaintiff also has a large amount of expenditure for the defendant's monthly salary, while the plaintiff consumeds all the lease deposit and monthly rent of the real estate of this case, the defendant, the external nominal owner, is liable for the repayment of the lease deposit, and the plaintiff and the defendant want to divide the ownership of the real estate of this case according to the ratio of division of property, taking into account all other circumstances, it is reasonable to divide the ownership of the plaintiff and the defendant's property in the current state, and the remaining 1/5 shares of the real estate of this case, while the remaining 4/5 shares of the real estate of this case are shared by the defendant, respectively.

D. Sub-committee

Therefore, the Defendant is obligated to implement the registration procedure for transfer of ownership based on the division of property with respect to one-fifth share of the instant real property as the division of property to the Plaintiff.

3. Conclusion

Therefore, the defendant's counterclaim claim for divorce is accepted for the reasons, and the defendant's counterclaim claim for consolation money is accepted for the reasons within the extent of the above recognition. The plaintiff's claim for divorce and consolation money for the plaintiff's principal lawsuit, the defendant's remaining claim for consolation money for the defendant's counterclaim is dismissed for all reasons, and it is so decided as per Disposition as to the claim for division of property among the principal lawsuit and counterclaim.

Judges already appointed