Whether it is permissible to transfer in advance the right to claim the division of property in case where the parties jointly filed a claim for the division of property before divorce is established (negative)

The right to claim a division of property due to divorce is a right to claim a division of property against the other party, and the legal effect thereof arises only when the divorce is established, and the scope and content thereof are unclear and definite until the divorce is established by agreement or adjudication. Therefore, in a case where a party files a claim for division of property jointly with a divorce lawsuit before the divorce is established, transferring the right to claim a division of property which has not yet occurred and has not yet specific details are not allowed by nature, and at the same time, transfer of the right to claim a division of property may become the object of transfer from the time the court rendered a final judgment ordering a payment of money as property division.

Article 839-2 of the Civil Act

Plaintiff 1 and one other (Law Firm Multiion et al., Counsel for the plaintiff-appellant)

Defendant (Bae, Kim & Lee LLC, Attorneys Im-soo et al., Counsel for the defendant-appellant)

Law Firm Purme

Seoul High Court Decision 2014Na26202 decided August 28, 2015

The part of the lower judgment against the Defendant regarding the conjunctive claim is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s Intervenor’s motion to intervene in the case is dismissed. The litigation cost incurred by the motion to intervene in the case

1. As to the grounds of appeal

A. The right to claim a division of property due to divorce is a right that one of the parties to a divorce has the right to claim a division of property against the other party, and the legal effect thereof arises only when the divorce is established, and the specific scope and content thereof are unclear and uncertain until the divorce is established by agreement or adjudication. Therefore, it is not permissible to transfer the right to claim a division of property in advance, which has not yet occurred and its specific content has not yet been formed, in cases where the parties jointly filed a claim for a division of property with the divorce lawsuit before the divorce is established, and it is not permissible by nature to transfer the right to claim a division of property before the divorce is completed, and at the same time

B. Review of the reasoning of the lower judgment and the record, including the duly admitted evidence, reveals the following facts.

(1) On August 31, 2012, the Nonparty borrowed KRW 100 million from Plaintiff 1 at an annual interest rate of 30%, and on December 13, 2012, the Nonparty transferred to Plaintiff 1 the amount of KRW 150 million out of the Nonparty’s claim against the Defendant (including the first instance judgment) ordered payment in Seoul High Court Decision 201Reu1Reu1682 (main claim) and 201Reu1Reu1Reu169 (Counterclaim) Decided November 8, 2012 (including the first instance judgment), and notified the Defendant on December 13, 2012, and the said transfer notification reached the Defendant on December 18, 2012.

(2) In addition, on January 7, 2013, the Nonparty borrowed KRW 100 million from Libya Co., Ltd. at an annual interest rate of 30%, and on the same day, the Nonparty transferred KRW 100 million out of the instant judgment amount to Libya Co., Ltd. by means of a security or repayment for the repayment of the said loan amount. On January 9, 2013, the Nonparty notified the Defendant of the said transfer, and the said notification was delivered to the Defendant on the same day.

(3) Meanwhile, the said lawsuit is a lawsuit filed by the Nonparty seeking divorce, division of property, etc. filed by the Defendant, and the counterclaim is combined (hereinafter “instant divorce lawsuit”). The judgment payment claim of the instant case includes both the Nonparty’s claim for consolation money, child support claim, and the Nonparty’s claim for division of property ordered by the court of first instance ordering payment in the judgment of the instant divorce lawsuit. Of them, the claim for consolation money is limited to KRW 30 million, and the child support claim is limited to KRW 45 million that has already been due at the time of the said transfer of property. The child support claim also includes approximately KRW 45 million that has already been due (i.e., KRW 5 million + monthly child support + KRW 2 million x base date x approximately KRW 2 million 20 million) from April 21, 2011 to December 13, 2012, or about KRW 20 months from January 7, 2013.

(4) Thereafter, the Supreme Court rendered a judgment dismissing the appeal on March 28, 2013 in the instant divorce case (principal lawsuit), 2012Meu5245 (principal lawsuit), and 2012Meu5252 (Counterclaim). On April 2, 2013, the said judgment was served on the Nonparty and the Defendant respectively, and became effective.

C. Examining the above factual relations in light of the above legal principles, the time when the Nonparty transferred part of the judgment amount to the Plaintiffs was declared by the appellate court of the instant divorce lawsuit, but the divorce was not established, and the adjudication on division of property becomes final and conclusive. Therefore, it is reasonable to deem that the part of the claim following the claim for division of property among the claims transferred in each of the instant case is null and void as it aims at a claim for

D. Nevertheless, the lower court determined that the assignment of each of the instant claims is valid on the erroneous premise that the assignment of claims for the instant judgment amount is possible. Therefore, the lower court erred by misapprehending the legal doctrine on limitation of the transfer of the right to claim division before the judgment on judicial divorce and the claim for division of property becomes final and conclusive, thereby adversely affecting the conclusion of the judgment. The allegation contained in

2. As to the legitimacy of the application for intervention

A. In order to participate in an action to assist one of the parties in a specific litigation case, an interest in the outcome of the relevant lawsuit must be interested. The term “interest” refers to a legal interest, not in fact, economic or emotional interest, and this refers to a case where res judicata or executory power of the judgment of the relevant lawsuit is obtained as a matter of course, or where the judgment does not directly affect the effect of the relevant lawsuit, it refers to a case where the legal status of a person who intends to participate in an action is determined at least on the premise of such judgment (see Supreme Court Decisions 79Nu74, Aug. 28, 1979; 9Da12796, Jul. 9, 199).

B. According to the reasons for the application of the Defendant’s Intervenor for Intervention (hereinafter “ Intervenor”), the Defendant deposited KRW 140,35,068 out of the judgment amount claim of this case with the Defendant or the Nonparty as the deposited party in relation to the claim of this case and the judgment amount claim of this case filed between the Intervenor and the Defendant. In the instant lawsuit, where the Plaintiffs win the lawsuit, it would affect the determination of the deposited party. Accordingly, the Intervenor, the Nonparty’s successor to the right of the deposited party, is also directly affected by the payment of the deposit amount, and thus, the Intervenor has a legal interest in the outcome of the instant lawsuit.

C. However, the record reveals the following facts.

(1) Of the judgment claim of this case, the part that the non-party transferred to the plaintiffs is not included in the above deposit amount calculated and deposited by the defendant.

(2) In addition, after the Seoul High Court rendered a ruling on the above Seoul High Court case No. 2015Reu20414, the Defendant again filed a suit against the Nonparty and the law firm Purme (the Intervenor) on the claim for the amount of the judgment in this case, which was brought by the Seoul Family Court case No. 2016Dhap37143, the Seoul Family Court rendered a ruling of recommending reconciliation with the purport of denying compulsory execution based on the claim for the amount of the judgment in this case by the Nonparty and the law firm Purme. Therefore, it seems that the law firm Pur

(3) On June 5, 2017, the Seoul Central District Court rendered a decision not to accept the Defendant’s report of reasons for deposit on the ground that, inasmuch as the part of the deposit for payment is invalid as the payment of partial deposit in the case No. 2015Mo1582, which is the distribution procedure for mixed deposit of KRW 140,35,068, the Seoul Central District Court rendered a decision not to accept the Defendant’s report of reasons for deposit on the ground that the mixed deposit itself becomes null and void, and that the said decision became final and conclusive as it is, the Plaintiffs

D. Examining the above circumstances in light of the legal principles as seen earlier, the Intervenor cannot be deemed to have a legal interest in the outcome of the instant lawsuit between the Plaintiffs and the Defendant on the sole basis of the grounds and the materials submitted by the Intervenor regarding the grounds for appeal against the Intervenor. Therefore, the instant motion for intervention is unlawful on the ground that the Intervenor

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the Defendant regarding the conjunctive claim is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The Intervenor’s motion to intervene in the case is dismissed, and the litigation cost arising from the motion to intervene in the case is assessed against the Intervenor. It is so decided as per Disposition by the

Justices Park Sang-ok (Presiding Justice)