A. In a case where the husband and wife made an agreement on the division of property on the premise of the divorce between husband and wife, whether it is effective even in a case where the marital relationship exists later or a judicial divorce is made

B. The method of division of property, in case where a judicial divorce was made after an agreement on division of property was made on the premise of divorce between parties

A. The consultation on the division of property refers to a consultation between the parties who already completed a divorce or between the parties who have not yet been divorced as to the division of property, which has been achieved through the cooperation of both parties during the marriage, and, in the case of consultation on the division of the above property on the premise that the parties who have not yet divorced have agreed on the divorce by agreement, barring any special circumstance, it shall be deemed that conditional declaration of intention is made on the condition that the divorce by agreement between the parties would be achieved by agreement between the parties in the future, unless there are special circumstances. Thus, if the agreement takes effect only in the case where a divorce by agreement has been reached after the agreement between the parties in the agreement, and a judicial divorce (including a divorce by reconciliation or mediation) is made by a divorce claim filed by one of the parties, such agreement shall not take effect due to the non-performance of the terms and conditions.

B. In a case where a judicial divorce is made after the agreement on the division of property was made on the premise of divorce, the parties who wish to divide the property after a judicial divorce or divorce along with a judicial divorce, unless a new agreement is reached after the divorce is made, a claim for adjudication on the division of property shall be filed with the family court by combining the divorce lawsuit with the procedures of divorce or the divorce lawsuit (i.e., “other circumstances” under Article 839-2(2) of the Civil Act, such as the details of the agreement and the circumstances on which the agreement was reached, may be considered as one of the “other circumstances” under Article 839-2(2) of the Civil Act, on the premise that the agreement on the division of property remains effective).

Articles 105, 147, and 839-2 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

[Judgment of the court below]

Defendant

Incheon District Court Decision 94Na7232 delivered on April 21, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

Based on the evidence of this city, the court below recognized that the plaintiff and the defendant agreed to divorce by agreement under Article 834 of the Civil Code on October 7, 1992 and agreed to pay the amount to the plaintiff as property division, and held that the above agreement is an agreement that the defendant shall pay the above amount to the plaintiff on the premise that divorce by agreement between the plaintiff is reached. In light of the records and relevant evidence, the above recognition and judgment of the court below is just and there is no error of law such as misconception of facts due to incomplete deliberation, such as the theory of lawsuit, and there is no ground for the argument.

2. On the second ground for appeal

Article 839-2 of the Civil Act provides that one of the parties who have been divorced by agreement may claim a division of property against the other party (paragraph (1)). When an agreement on the division of property is not reached or is impossible, the Family Court shall, at the request of the parties, determine the amount and method of division in consideration of the amount of the property achieved by mutual cooperation between the parties and other circumstances (paragraph (2). This provision is applicable mutatis mutandis to judicial divorce pursuant to Article 843 of the Civil Act.

However, the agreement on division of property in this context refers to a consultation between the parties who already completed a divorce or between the parties who have not yet been divorced as to the division of property, which has been achieved through the cooperation of both parties during the marriage, and in the case of consultation on the division of the above property on the premise that the parties who have not yet divorced have agreed on the divorce by agreement, barring any special circumstance, it shall be deemed that conditional declaration of intention is made on the condition that the divorce by agreement between the parties would be achieved by agreement between the parties in the future, unless there are special circumstances. Thus, if the agreement takes effect only in the case where a divorce by agreement has been reached after the agreement between the parties in the agreement, it shall be deemed that the agreement takes effect without divorce by agreement, or if a judicial divorce (including a divorce by reconciliation or mediation; hereinafter the same shall apply) has been made by the action on the divorce filed by one party, the agreement shall not take effect due to the non-performance of the terms and conditions.

Therefore, in this case, unless there is a new agreement after the divorce after a judicial divorce or a judicial divorce, the parties who wish to divide the property shall be entitled to seek a judgment on the division of property to the family court by combining the above divorce lawsuit and the divorce lawsuit and the above divorce lawsuit procedures (if the family court determines the amount and method of division of property according to this, the details of the agreement and the process of consultation shall be considered as one of the "other circumstances" under Article 839-2 (2) of the Civil Act), and it is not possible to seek a performance of the agreement itself by means of civil litigation on the premise that the agreement on the division of property at issue remains effective.

On November 17, 192, 192, after the above agreement was concluded, the court below rejected the plaintiff's claim of this case seeking the implementation of the above agreement itself, since the plaintiff filed a lawsuit against the defendant for divorce and consolation money of KRW 30 million, and division of property of KRW 50 million, which was withdrawn on February 5, 1993. Accordingly, the defendant filed a lawsuit against the plaintiff for divorce on June 3, 1993, which was judged in favor of the plaintiff on June 24, 1993, and the judgment became final and conclusive on June 24, 1993.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)