In a case where a change in the property relationship arising between the date of closing argument after the marriage relationship has been broken down is irrelevant to the property relationship jointly formed during the marriage, whether the changed property is included in the property subject to division of property (negative)

Articles 839-2(2) and 843 of the Civil Act

Supreme Court en banc Order 2000Do13 Decided May 2, 200 (Gong200Ha, 1427) Supreme Court Decision 2010Meu4071, 4088 Decided June 20, 2013 (Gong2013Ha, 132)

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Im-soo et al., Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2012Reu40, 457 decided March 6, 2013

The part of the lower judgment against the Plaintiff (Counterclaim Defendant)’s claim for division of the principal lawsuit and counterclaim property is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 2

A. The main purpose of the property division system is to liquidate and distribute the property jointly formed by the husband and wife in the case of divorce, etc., and it is to determine the share to be reverted to each person by dividing the positive property created by the husband and wife’s cooperation and the obligation borne in the course of raising the necessary expenses in the common living relationship between the husband and wife, etc. (see Supreme Court en banc Decision 2010Meu4071, 4088, Jun. 20, 2013). In a case where the other party is active property or obligation arising from one spouse’s marital relationship and is irrelevant to its formation, maintenance, or burden, it shall not be included in the property subject to the property division.

Therefore, in principle, the property subject to division in the division of property following a judicial divorce and its amount shall be determined based on the date on which the fact-finding hearing of a divorce lawsuit is closed (see Supreme Court Order 2000SS13, May 2, 2000). However, in special circumstances where there are special circumstances, such as that the change in the property relationship arising between the date of closing the argument after the marriage is closed is irrelevant to the property relationship formed jointly during the marriage, and thus, the changed property should be excluded from the property subject to division of property.

B. The lower court: (a) premised on the premise that the property subject to division in the division of property at the time of judicial divorce ought to be determined on the basis of the date of closing argument at the fact-finding court in a divorce lawsuit; (b) based on the relevant employment evidence, the Plaintiff and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) (hereinafter “Defendant”) have assumed the Plaintiff’s liability against 404,236,131 won against her bank as of December 21, 2009, which began to be separate from each other; (c) however, on July 26, 2011, recognized the fact that the Plaintiff had a deposit claim of 5,612,702 won against her bank as of July 26, 2011 upon full repayment of the said debt, and thus, it cannot be included in the Plaintiff’s passive property. However, such circumstance was considered when determining the rate of division of property.

C. However, the above determination by the court below is not acceptable for the following reasons.

(1) According to the records, on July 24, 2006, the Plaintiff and the Defendant were liable for approximately KRW 200 million in the so-called Espbook bank account, which was traded with our bank as of July 24, 2006 prior to marriage with the Defendant, but even after marriage with the Defendant, the Plaintiff increased or decreased the amount of debt in the said bank account, and the Defendant was liable for KRW 404,236,131 as of December 21, 2009, which was separate from the Defendant, as of December 21, 2009. After that, the Plaintiff’s broadcast contribution charges, etc. were deposited in the said bank account, all obligations of the Espbook bank account were extinguished, and more than KRW 13 million were deposited in the said bank account. On the other hand, there may be no evidence to deem that the Defendant either contributed to the extinguishment of the obligation or contributed to the Defendant’s maintenance of the property after marriage or the Defendant’s separately.

(2) According to the above facts, the extinction of the Plaintiff’s obligation against our bank seems to be irrelevant to the Plaintiff’s unilateral effort after the Plaintiff’s marital relationship was extinguished due to the failure of the marriage between the Plaintiff and the Defendant and the Plaintiff’s property relationship formed prior thereto. Therefore, even if the above obligation was extinguished at the time of the closing of argument in the lower court, it would be reasonable to include it in the amount formed in the marital community relationship in determining the scope of the property subject to division of property. Furthermore, even if the deposit claim formed after the failure of the lower court excluded it from the subject of division of property on the ground that it was formed by the Plaintiff’s sole effort, but the repayment of the marina loan made during the period is considered as having been made as having been by cooperation in the marital relationship, and calculated the amount of the property subject to division

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the subject of division of property at the time of judicial divorce, or failing to exhaust all necessary deliberations, and the ground of appeal

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the plaintiff as to the claim for division of the principal lawsuit and counterclaim against the plaintiff is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition.

Justices Kim Chang-suk (Presiding Justice)