In a case where Gap, her husband Eul and Eul prepared a written agreement with her husband Eul to the effect that " Eul will live with another woman, and Eul will transfer the ownership of the apartment to Eul," and Eul transferred the ownership of the apartment from her husband, the case holding that Gap's claim against Eul to seek a payment of consolation money for divorce against Eul cannot be viewed as violating the principle of good faith or the principle of good faith, in a case where Gap filed a separate lawsuit to seek a payment of consolation money for divorce against Eul, since the above apartment is donated as consolation money and thus it should be excluded from the object of division of property.

The case holding that, in case where Party A and Party B were her husband Eul and Party B prepared an agreement with Party B to the effect that “A shall transfer the ownership of the apartment to Party B,” and Party B received the transfer of the ownership of the apartment from Party B, it did not accept Party A’s assertion that the apartment should be excluded from the subject of property division since the apartment was donated as the consolation money in divorce and property division lawsuit, and Party B brought a separate lawsuit against Party B seeking the payment of consolation money due to divorce, the case held that Party A’s claim for consolation money is not against the principle of good faith or the good faith principle, in view of the fact that Party A's legal judgment as to the content of the agreement was erroneous, but brought a separate lawsuit of consolation money, which would not be accepted, and that Party A’s claim for consolation money is much larger than the consolation money that Party A suffered due to its inclusion in the subject of property division, which is included in the subject of property division.

Articles 2, 806(2), and 843 of the Civil Act

Plaintiff (Attorney Kim Ho-ro, Counsel for plaintiff-appellant)

Defendant (Attorney Lee Jae-sung, Counsel for the defendant-appellant)

March 21, 2018

1. The Defendant shall pay to the Plaintiff the amount of KRW 10 million with 5% interest per annum from January 9, 2018 to April 4, 2018, and 15% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 30 million won with 15% interest per annum from the next day of the delivery of the complaint of this case to the day of full payment.

1. Facts of recognition;

A. The plaintiff and the defendant reported their marriage on April 13, 1981, and two children were born.

B. In around 2009, the Plaintiff and the Defendant: (a) claimed that they were married problems; and (b) claimed that they were married problems; and (c) the Plaintiff began to bring about a lawsuit. On December 2012, the Plaintiff doubtful the Defendant’s appearance after having made a trip to the friendly Gu and Jeju-do; and (d) the relationship between two persons became worse.

C. From December 2014, the Defendant conspireds with the Nonparty, and requested a divorce from March 2015 to the Plaintiff, but the Plaintiff refused the divorce.

D. On August 4, 2015, the Plaintiff and the Defendant: (a) drafted a written agreement (hereinafter “instant agreement”) containing the content that “from August 10, 2015, the Defendant would request the Plaintiff to live with another woman; (b) the Defendant would transfer the right to the Plaintiff of the Busan Seo-gu (hereinafter “instant apartment”) from the next address omitted to the Plaintiff,” and received authentication for a deed signed by a private person on the following day. The Defendant lived with the Nonparty around that time.

E. On October 21, 2015, the Plaintiff filed a lawsuit against the Defendant for divorce and division of property, and for claiming consolation money against the Nonparty ( Busan Family Court 2015dhap201797). On June 29, 2017, the above court rendered a judgment ordering the Nonparty to pay consolation money with the amount of consolation money of KRW 20 million and delay damages, which became the main cause of the Defendant’s and the Nonparty’s wrongful act. After recognizing the failure of the relationship between the Plaintiff and the Nonparty, the Plaintiff made the instant agreement and expressed his/her intention of ex post use or advance consent on the unlawful act of the Defendant and the Nonparty, and in accordance with the instant agreement, the Plaintiff’s assertion that “the payment of consolation money was completed by the Defendant transferring the instant real estate to the Plaintiff.”

F. The Plaintiff appealed against the above judgment ( Busan High Court Decision 2017Reu30376), and argued that the apartment of this case should be excluded from the subject of property division because it was donated as consolation money. However, the above court rejected the Plaintiff’s assertion on the ground that there is no evidence to acknowledge that the Plaintiff received the apartment of this case as consolation money, aside from the fact that the Plaintiff claimed consolation money for divorce against the Defendant. The above appellate court judgment was final and conclusive on January 3, 2018 because it did not appeal both.

G. Around January 2018, the Nonparty paid consolation money to the Plaintiff according to the first instance judgment.

[Reasons for Recognition] Gap evidence 1,

2. Determination

A. The defendant's obligation to pay consolation money

(1) According to the above facts, since the defendant and the non-party's wrongful act were the main cause and the marital relationship between the plaintiff and the defendant has been broken down, the defendant, who is the responsible spouse, is liable to pay consolation money to the plaintiff, unless

(2) The defendant asserts that the plaintiff prepared the agreement of this case, thereby consenting to the defendant's improper act or admitting it after the conclusion of the agreement of this case, and that the defendant fulfilled all the obligation to pay consolation money by transferring the apartment of this case to the plaintiff in accordance with the agreement of this case. However, as determined in the divorce lawsuit between the plaintiff and the defendant, the preparation of the agreement of this case is insufficient to recognize that the plaintiff consented to the defendant's improper act or used it, and there is insufficient evidence to recognize that the plaintiff received the apartment of this case

In addition, the Defendant asserts that even though the Plaintiff asserted that the apartment of this case was donated as consolation money from the Defendant in a divorce lawsuit, claiming consolation money is contrary to the principle of no speech and good faith. However, considering that the Plaintiff’s assertion of consolation money due to erroneous determination on the content of the agreement of this case, but did not accept it, the Plaintiff brought a separate lawsuit of consolation money as stated in the reasoning of the judgment that did not accept it, and that the Plaintiff’s rejection of the Plaintiff’s assertion of consolation money and the disadvantage suffered by the Plaintiff is much larger than the consolation money that the Plaintiff seeks as the lawsuit of this case, it cannot be deemed that the Plaintiff’s claim of consolation money by the lawsuit of this case contravenes the principle of no speech and good faith.

Since the Defendant, in a divorce lawsuit with the Plaintiff, determined the amount of division of property by recognizing the Plaintiff’s contribution to the consolation money that the Plaintiff would receive, the Defendant asserts that separate claim for the payment of consolation money constitutes double claims. However, it is insufficient to recognize that each court calculated the amount of division of property including the consolation money that each Defendant would pay to the Plaintiff in the divorce lawsuit by the Plaintiff and the Defendant, and there is no other evidence to acknowledge otherwise.

(3) Therefore, the defendant is liable to pay consolation money to the plaintiff for the dissolution of marriage.

B. Amount of consolation money to be paid by the defendant

The consolation money to be borne by the defendant shall be determined as KRW 30 million, taking into consideration the various circumstances shown in the arguments in the instant case, such as the period of marriage of the plaintiff and the defendant, the background leading up to marriage, the degree of fraudulent act by the defendant and the non-party, and the attitude of the defendant

However, since the obligation to pay consolation money to the plaintiff of the defendant and the non-party is a tort liability based on a tort, the repayment of the non-party to the joint tortfeasor is also effective for the defendant, who is another joint tortfeasor. Since the non-party has already paid consolation money of KRW 20 million to the plaintiff, the defendant is obligated to pay the plaintiff the remainder of the amount of consolation money of KRW 10 million and damages for delay.

C. Sub-committee

From January 9, 2018, the day after the delivery of the complaint of this case to the Plaintiff, the Defendant is obligated to pay damages for delay calculated by the rate of 5% per annum prescribed by the Civil Act until April 4, 2018, and 15% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment, to the day of this decision, which is deemed reasonable for the Defendant to resist the existence and scope of the obligation.

3. Conclusion

The plaintiff's claim for consolation money shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as they are groundless.

Judges Yoon Jae-nam