[1] Whether a retirement pension among the public officials pension is subject to division of property (affirmative)

[2] Whether a disaster pension among the public officials pension is subject to division of property (negative)

[3] In a case where the divorce between Gap and Eul is at issue, the case holding that Eul should pay consolation money to Eul, and the retirement pension among the public officials pension received by Gap is included in the subject of division of property, on the grounds that Eul has the fundamental and principal responsibility for the failure of the marriage between Gap and Eul, considering the fact that the marital relationship between Gap and Eul has deteriorated to the degree that it is impossible to recover, and Eul has accepted a divorce claim in consideration of the fact that Eul has not properly taken care of Gap who is in need of assistance from the occupational accident and paid attention to the activities

[1] Among the public officials pension, a retirement pension has the nature of entitlement to social security benefits and the post-paid wage; where a retirement pension is received in lump sum, if a retirement pension is received in the form of a pension even if it is possible to be the subject of division of property, it is unreasonable that property of the same nature is included or not included in the subject of division of property at the recipient’s option; it was possible to serve as a public official on the basis of the spouse’s assistance and was able to receive a retirement pension; and the retirement pension was allowed to be paid even if it is not possible to determine the amount simply because it is difficult to determine the amount thereof, it goes against the principle of equity (if it is not sufficient to take into account as a ground for division of property). Of the benefits under the National Pension Act, it is reasonable to consider the retirement pension as the subject of division of property among the public officials pension by equally dividing the pension amount corresponding to the period of marriage (Article 64 of the National Pension Act).

[2] Among the public officials pension, the Defendant’s contribution to receiving a disaster pension due to an accident in the line of duty cannot be recognized, so it is reasonable to exclude the Defendant from the subject of property division.

[3] In a case where the divorce between Gap and Eul is at issue, the case holding that Eul shall pay consolation money to Eul on the ground that Eul has the fundamental and principal responsibility for the failure of the marriage due to the following reasons: (a) considering the fact that Gap and Eul wanted divorce and the marital relationship between Eul and Eul are deemed to have deteriorated to the degree that they could not be recovered; (b) Eul accepted a claim for divorce in consideration of various circumstances, including the fact that Eul and Eul wanted to have been divorced; and (c) Eul did not properly look at Gap needed to assist them by suffering from occupational accidents; and (d) provided loan to Eul for suspicion of Eul's misconduct; and (e) pressure and b) made a threat to Gap for economic reasons, and the retirement pension among the public officials pension received by Gap is included in the property division.

[1] Article 64 of the National Pension Act, Articles 839-2, 840, and 843 of the Civil Act / [2] Articles 839-2, 840, and 843 of the Civil Act / [3] Articles 839-2, 840, and 843 of the Civil Act

Plaintiff (Counterclaim Defendant) (Attorney Park Poe-young et al., Counsel for the plaintiff-appellee)

Defendant-Counterclaim (Attorney Kim Jong-jin et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

August 11, 2011

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

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 30,000,000 consolation money with 5% per annum from October 6, 2010 to August 25, 201, and 20% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s claim for consolation money and the plaintiff (Counterclaim plaintiff)'s claim for consolation money shall be dismissed, respectively.

4. The Defendant (Counterclaim Plaintiff) is a division of property against the Plaintiff (Counterclaim Defendant).

(a)payment of 8,00,000 won and 5% interest per annum from the day following the day this judgment becomes final and conclusive to the day of full payment;

B. From the day following the date this judgment became final and conclusive to the day before the Defendant (Counterclaim Plaintiff) dies, the Defendant (Counterclaim Plaintiff) shall pay 40% of the monthly amount of retirement pension as at the end of each month.

5. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

6. Paragraph 2 can be provisionally executed.

The principal lawsuit: Section 1 of the Disposition and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) KRW 100 million and the amount calculated by the rate of 20% per annum from the day following the delivery of a copy of the principal complaint of this case to the day of complete payment. The Defendant shall pay to the Plaintiff the amount calculated by the division of property at a rate of 109,746,790 won per annum and 5% per annum from the day following the day when the judgment becomes final and conclusive to the day of complete payment, and KRW 1,550,00 per annum from the day after the delivery of a copy of the principal complaint of this case to the day when the Defendant dies.

Counterclaim: Claim 1 and the Plaintiff pay to the Defendant 50 million won as consolation money and 20% interest per annum from the day following the delivery day of the counterclaim of this case to the day of complete payment. The Plaintiff shall pay to the Defendant the amount calculated by the rate of 142,180,000 won as division of property and 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

1. Determination on the claim of divorce and consolation money against each principal lawsuit and counterclaim

A. Facts of recognition

(1) Marriage and children: Marriage Report on December 30, 1980, and Non-Party 1 (Nam, October 16, 1981) under the chain.

(2) Circumstances of marriage and breakdown

(가) 원고와 피고는 혼인 후 1986. 12. 7.경 시어머니가 돌아가실 때까지 중풍으로 고생하는 시어머니를 모시고 인천 부평에 있는 시댁에서 생활하였다. 원고와 피고는 시어머니가 돌아가신 후인 1987년경 서울에 독산동에 집을 얻어 이사하면서 서울 생활을 시작하였다. 피고는 과학기술처, 정보통신부조달사무소 등에서 공무원으로 근무하였는데 원·피고의 살림은 넉넉하진 않았으나 별다른 어려움 없이 생활할 수 있을 정도였다.

(B) On May 10, 1996, the Defendant started to receive hospitalized treatment from the Gannam University Hospital at the Gannam University Hospital by July 2, 1996, and became the disabled of class 2 of this day due to the delay of this day. The number of the Defendant was frighted to the Defendant, but the number of the Defendant was frighted to the Defendant from the time when the Defendant was transferred to the oriental medical hospital at the Gannam University. While the Defendant was going to the workplace again since 1997, the Defendant was frighted to the extent that she had sexual intercourse with each other after the Plaintiff and the Defendant, and became the disabled of class 2 of this day. The Plaintiff was employed by the Defendant.

(C) Around September 200, the Defendant voluntarily retired. The Plaintiff maintained his livelihood while managing the public official pension and disability pension (the retirement pension and disability pension) that the Defendant received after the Defendant voluntarily retired. From this point of time, the Plaintiff was frequently going out of the house rather than the house’s day, and the house’s day was mainly the Defendant and the Defendant’s children with poor body. The Plaintiff failed to pay the money to the Defendant properly, making it difficult for the Defendant difficult.

(D) From 2006, the Plaintiff began to operate a real estate brokerage business. Although the Plaintiff’s real estate brokerage business was not well-grounded, the Plaintiff was late returning to Korea on the ground of his/her business, and was a kind of business that the Plaintiff returned to Korea on the ground of his/her business. Accordingly, the Defendant began to interrogate the Plaintiff’s misconduct. Nonparty 1 of the Plaintiff and the Defendant her children assisted the Plaintiff’s real estate brokerage business, and he/she was working in the real estate brokerage office, any woman was found to have been fluored on the Plaintiff’s water while referring to the Plaintiff’s misconduct.

(E) Around March 2010, the Defendant took the issue of withdrawing money of KRW 12 million from the head of the Tong to which the public official pension is paid. They brought back the public official pension passbook that was entrusted to the Plaintiff and managed the pension himself. The Plaintiff, while managing the public official pension, requested the Defendant to divorce as the Defendant did not pay any living expenses.

(F) The Plaintiff and the Defendant were residing in Jincheon-dong, Seoul and 1,000,000 won of the deposit for the lease on July 11, 2010. On July 19, 2010, the Defendant leased the house located in the 10,000,000 won of the deposit for the lease on a deposit basis at the 1,000,000 won of the deposit for the lease on a deposit basis, and on June 19, 2010, the Plaintiff leased the 306-dong, Yeongdeungpo-gu, Seoul to KRW 16,00,000,000,000 won of the deposit for the lease on a deposit basis. On July 18, 2010, the Defendant received part of the deposit for the lease on a deposit for the lease on a deposit basis, but was denied by the Plaintiff.

(G) On August 13, 2010, the Plaintiff filed a lawsuit for divorce of this case immediately after the aforementioned separate stay.

[Evidence] In the absence of dispute, entry of Gap 1 to 3, 5, 8, 9, Eul 1, 3, 6, 13 (including each number), investigation report by family investigator, and the purport of the whole pleadings

B. Determination on the principal lawsuit and each counterclaim

The plaintiff's claim for the principal lawsuit and the defendant's counterclaim divorce are justified for each reason under Article 840 subparagraph 6 of the Civil Code.

[Ground for determination] The above fact-finding, especially the fact that the plaintiff and the defendant want a divorce between themselves through the main lawsuit and the counterclaim of this case, and that the marital relationship between the plaintiff and the defendant seems to have deteriorated to the extent that the plaintiff and the defendant could not recover.

C. Determination on the claim of consolation money for each principal lawsuit and counterclaim

(1) Claim for consolation money in the principal lawsuit: Dismissal.

(2) Claim for solatium consolation money: Partial acceptance.

The amount of KRW 30 million and the damages for delay calculated by applying each rate of KRW 5% per annum from October 6, 201 to August 25, 201, which is the day following the day on which the copy of the counterclaim of this case was served on the Plaintiff, and 20% per annum from the next day to the day of complete payment.

【Reasons for Determination】

The fundamental and main responsibility for the failure of the marriage between the Plaintiff and the Defendant lies in the Plaintiff: Taking into account various circumstances, including the following: (a) not only care of the Defendant, who is in need of help from occupational accidents, but also paying attention to the extra-family activities; (b) the Plaintiff provided loan to doubt the Plaintiff’s misconduct; (c) the Defendant’s pressure and collapse for economic reasons; and

2. Determination on the principal lawsuit and the counterclaim for division of property

(a) Details of property formation;

(1) The Defendant served as a public official from the time of marriage. The Plaintiff was in exclusive charge of the household affairs as the main father, and was engaged in real estate brokerage business since 2006. The primary income of the Plaintiff and the Defendant was the Defendant’s salary, and the Plaintiff’s income was not much helpful for the household.

(2) 원·피고는 혼인 후 인천 부평의 시댁에서 거주하다가 1987년경 그동안 모은 돈 300만 원 등으로 서울 구로구 독산동에 전세를 얻어 서울 생활을 시작하였고, 1988년경에는 전세를 안고 독산동 소재 단독주택을 매수하였다.

(3) On April 1, 1995, the plaintiff and the defendant purchased at KRW 75 million the site of Bupyeong-gu, Bupyeong-gu, Incheon ( Address 4 omitted) and the building without permission on the ground (hereinafter “instant Bupyeong-dong site and building”).

(4) In around 197, 1997, the plaintiff and the defendant sold the so-called So-dong detached Housing to KRW 130,000,000,000 and lived with the pre-sale price, and around 2008, the plaintiff and the defendant leased KRW 170,000,000 as the pre-sale deposit.

(5) On July 18, 2010, the Plaintiff, in its entirety, took up KRW 170 million as the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the deposit for the house located in Gangdong-gu Seoul Metropolitan Government ( Address 2 omitted) on July 11, 2010, and the deposit for the deposit for the deposit for the lease of the said house is KRW 10 million.

(6) The Defendant retired on or around September 30, 200, and the retirement day retirement pension is KRW 82,606,720, the amount of compensation for disability, KRW 54,727,50, and KRW 1,739,430 as of November 201, and the disability pension is KRW 1,739,430 as of January 1, 201, and KRW 1,384,160 as of January 1, 201. The Plaintiff and the Defendant have been living with the Defendant’s public official pension until March 2010.

(b) Property and value to be divided;

(a) Property subject to division: Each property and retirement pension specified in the detailed statement of the attached Form of Divided Property;

(2) The value of the property to be divided;

① Plaintiff’s net property: 246,578,786 won

(2) The defendant's net property: 390,863,639 won + The retirement pension paid monthly.

③ Total amount of net property of the Plaintiff and the Defendant: KRW 637,442,425 + The retirement pension.

[Evidence] In the absence of dispute, Gap 14, 16, 18, Eul 5, 14, 15, and 20 (including each number), each statement of the order to submit financial information of this court, the reply of the order to submit financial information of this court, the result of the request for market price appraisal by this court, the investigation report by family affairs investigators, and the purport of the whole pleadings

C. Determination as to the party’s assertion on the property subject to division

(1) Claim for special property

The defendant asserts that the land and building of the Bupyeongdong in this case are the defendant's unique property donated by the defendant who was donated by the defendant, and thus it is not subject to division of property.

However, since the plaintiff and the defendant purchased the above real estate at KRW 75 million, the above argument by the defendant is rejected ( even if the defendant received the above real estate donation, the plaintiff and the defendant have been married for about 30 years, and the plaintiff have been in full charge of domestic affairs and childcare during the marriage period, it is reasonable to see that the plaintiff has contributed to the maintenance of the real estate in this case, and that it is subject to division of property by the plaintiff and the defendant).

(2) The cancellation fee under the Plaintiff’s name

The Defendant asserts that KRW 12 million should be included in the active property owned by each Plaintiff, which was terminated on August 2, 2010 after the marriage of this case was broken down. The Defendant asserted that KRW 40 million should be included in the Plaintiff’s active property.

Unless there are special circumstances, such as that the amount withdrawn after the marriage failure was consumed for the purpose of maintaining common life or marital property of the married couple, it is reasonable to view that the withdrawing party holds the said amount of money. The Plaintiff’s deposit is a litigation cost, and the cancellation amount of the NAF was paid as the Plaintiff’s cost of living and office operation, but there is no evidence to support the allegation that the amount was paid as the Plaintiff’s cost of living and office operation, and there is no other evidence to support that it

(3) Deposits in the name of the defendant

The plaintiff asserts that 1,021,649 won and 3,448,140 won held in the account in the name of the defendant's bank (Account Number 5 omitted) as of May 25, 2010 and the account of the Agricultural Cooperative Federation (Account Number 6 omitted) in the name of the defendant should be determined as holding by each defendant.

According to the Defendant’s response to the order to submit financial information to NAC on July 28, 2011 and the reply to the order to submit financial information to the NACF on August 2, 2011, it is recognized that the balance of KRW 1,021,649, and the NAC’s account (the Defendant’s public official’s pension payment account) as of May 25, 2010 was 1,021,649, and the NAC’s account (the Defendant’s public official’s pension payment account) was consumed on the above money due to the Defendant’s housing lease deposit and living expenses. However, the money of the NACCF is included in the Defendant’s disability pension, as well as the housing lease deposit amount of KRW 1,00,000,000 is subject to division of property. Therefore, the Plaintiff’s assertion on this part is without merit.

(4) Nonparty 2’s loan

Although the defendant asserts that he has a debt of KRW 15 million to the pro-Japanese 2, the defendant is insufficient to recognize the debt only with the statement of KRW 19,000,000, and there is no other evidence to acknowledge it.

(5) A public official pension in Defendant’s name

The plaintiff asserts that the public officials pension that the defendant received every month should be subject to division of property, and that the defendant's public officials pension that the defendant will receive in the future cannot be confirmed and can not be included in the property subject to division.

First of all, the part of the retirement pension among the public officials pension, ① the retirement pension among the public officials pension has the nature of entitlement to social security benefits and the post-paid wage at the same time, ② the retirement pension in the public officials pension can be subject to the division of property in the case of receiving the retirement pension in a lump sum, but it is unreasonable that the same property cannot be subject to the division of property in the case of receiving it in the form of a pension is included or not included in the subject of the division of property at the choice of the recipient, ③ the defendant was able to serve as a public official based on the Plaintiff’s husband and was able to receive the retirement pension, and the retirement pension is excluded from the subject of the division of property on the sole ground that it is difficult to determine the amount of the retirement pension simply because it is difficult to determine the amount of the retirement pension, ④ With respect to the old-age pension under the National Pension Act, it is reasonable to consider the division of property as the subject of the public officials pension among the public officials pension under the division of property.

Meanwhile, according to Article 43-2(1) of the Public Officials Pension Act, pension benefits are to increase or decrease every year the amount corresponding to the national consumer price fluctuation rate of the previous year compared to the previous year of the year immediately before the year immediately preceding that publicly notified by the Commissioner of the Statistics Korea pursuant to Article 3 of the Statistics Act. Therefore, the method of division is determined to pay the amount equivalent to the Plaintiff’s property division ratio out of the retirement pension paid every month from the time when the Defendant

Next, among the public officials pension paid by the defendant, the accident pension paid by the defendant cannot be recognized as a contribution of the plaintiff to receive the disaster pension due to an accident on official duty, so it is reasonable to exclude the defendant from the property division.

(d) Ratio and method of division of property;

(1) Division ratio: Plaintiff 40%, Defendant 60%

[Based on the determination] The above facts, the process and period of the acquisition and maintenance of the property subject to division, the degree of contribution of the plaintiff and the defendant, the process and period of the marital life, the circumstances shown in the arguments in this case, such as the age of the plaintiff and the defendant, current health, occupation, and income status,

(2) Method of division of property

(A) Except for retirement pension: The portion of the property in the name of the plaintiff and the defendant shall be determined according to the ownership, and the part of the amount to be reverted to the plaintiff according to the division ratio of property shall be paid in cash by the defendant to the

Property division amount to be paid by the Defendant to the Plaintiff: 8,000,000 won

【Calculation Form】

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

: 637,442,425 won in total of net property of the plaintiff and the defendant ¡¿ 40% in = 254,976,970 won in total.

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

: 254,976,970 won - 246,578,786 Won = 8,398,184 won

③ Division of property that the Defendant pays to the Plaintiff:

② KRW 8,000,000,000 for a little amount of money stated in the above paragraph

(B) Retirement pension: To pay 40% of the retirement pension to be paid monthly by the Defendant until his death on the last day of each month;

3. Conclusion

Therefore, the plaintiff and the defendant's principal lawsuit and the counterclaim divorce claim are accepted with merit, and the defendant's counterclaim consolation money claim are accepted within the scope of the above recognition. The plaintiff's principal lawsuit and the defendant's counterclaim remainder of consolation money are dismissed without merit. It is so decided as per Disposition as to the division of property.

[Attachment] List of Divided Property: Omitted

Judges Han-hee (Presiding Judge)

Note 1) (Account Number 1 omitted)

Note 2) (Account Number 2 omitted), KRW 10 million (Account Number 3 omitted), KRW 10 million (Account Number 3 omitted), KRW 20 million (Account Number 4 omitted).