The case holding that although there is no amount remaining after deducting the amount of debt which is the object of liquidation from the total value of the property of the couple, the party (B) shall bear only the small property, while the other party (B) shall allow the claim for division of property against B where there is surplus property even if the amount of the debt is deducted from the positive property.

In principle, where one spouse bears the obligation that is the object of liquidation and there is no amount remaining if the other spouse deducts the above amount from the total property value, the other spouse’s claim for division of property shall not be allowed. However, even if the other spouse deducts the negative property under his/her name from the active property under the other spouse’s name, if the other spouse bears only the obligation that is the object of liquidation, and if the other spouse’s claim for division of property against the other spouse is not allowed, the other spouse would possess the surplus property, and the other spouse would only bear the obligation, but if the other spouse would not be allowed to claim division of property, it would result in harsh results that the other spouse would be able to hold the surplus property and the other spouse would bear only the obligation, and if the other spouse has any remaining property even after deducting the total amount of the negative property from the total

Article 839-2 of the Civil Act

Plaintiff (Law Firm Gyeonggiwon, Attorneys Kim Jong-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Lee Young-hoon, Counsel for defendant-appellant)

The principal of the case and one other

April 6, 2005

1. The plaintiff (the counterclaim defendant) and the defendant (the plaintiff) are divorced by the principal lawsuit and the counterclaim.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) the amount of 14,340,000 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.

3. The Plaintiff (Counterclaim Defendant) shall be designated as the person with parental authority and the person with parental authority over the case principal 2, and the person with parental authority over the case principal 1 and the person with parental authority over the Defendant (Counterclaim Plaintiff)

4. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining counterclaim claims of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

5. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) by adding the principal lawsuit and the counterclaim to 50%, and the Defendant (Counterclaim Plaintiff) by 50%.

In this lawsuit, the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") are divorced. The defendant shall pay to the plaintiff 72 million won as consolation money and 20% interest per annum from the judgment of this case to the day of complete payment.

Counterclaim: (3) The defendant and the plaintiff are divorced. The plaintiff shall 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 75 million won as division of property, 220,000 won, and 20% interest per annum from the day following the delivery day of the application for extension of claim and modification of cause of claim of the counterclaim of this case to the day of complete payment.

1. Claim for divorce and consolation money, respectively, against the principal lawsuit and counterclaim;

A. Facts of recognition

(1) The plaintiff and the defendant are legally married couple who reported their marriage on April 28, 1998, and have a seven-year age difference, and only one minor infant and one parent of the case.

(2) The Plaintiff was a public official belonging to the Seoul Metropolitan Government, and the Defendant was a public official belonging to the Gangnam-gu Seoul Metropolitan Government, and there was a minor dispute between the Plaintiff and the Defendant on the ground that the Plaintiff was negligent in domestic affairs from the beginning of the new marriage, and the Plaintiff was unable to make the savings well, and the Defendant was able to manage the head of the Tong, and the Defendant was also able to manage the head of the Tong, and the Defendant was also exempted from the deficit caused by the stock investment failure, thereby managing their respective revenues thereafter.

On July 2002, 2002, the plaintiff and the defendant argued that they bear the burden of raising the rent deposit for rental apartments residing by them. At that time, the defendant sought the plaintiff, and around that time, the plaintiff left home and remains in friendly state around February 2003.

(3) On the other hand, around 200, the Plaintiff continued to contact with the Nonparty, who was at the time of the university at the time of the university at around 2000, and maintained the relationship with the Plaintiff, such as the Nonparty’s reconvening the Non-Party after having been contacted with the Non-Party on December 2002, and the Plaintiff continued to talk with the Non-Party, and the Plaintiff’s reconvening the news of the windows and vessels at the time of the university’s windows

(4) Around March 2003, the Defendant was sent a message sent to the purport that the Defendant was “ID” by the Nonparty who misleads the Defendant as the Plaintiff, while using the computer at home. The Defendant demanded the Plaintiff to show e-mail between the Plaintiff and the Nonparty, based on the above facts. As to the facts that the Plaintiff had contacted with the Nonparty, the Defendant did not show the e-mail while borrowing a letter. Instead, when the Defendant demanded the Plaintiff to change the Plaintiff’s mobile phone number, the Plaintiff changed its phone number.

(5) However, when the Plaintiff continued to contact with the Nonparty on the changed phone number, the Plaintiff changed the phone number at the request of the Defendant, but continued to contact with the Nonparty on the changed phone number each time.

Due to the above problems between the plaintiff and the non-party, the defendant would be able to file a divorce agreement with the plaintiff at the end of August 2003. On August 22, 2003, the Seoul Family Court was present at the Seoul Family Court to confirm the intention of divorce, but did not file a divorce report by deciding to compromise.

(6) Around November 2003, the Defendant confirmed the statement of the Plaintiff’s mobile phone phone call (6) and followed that the Plaintiff came to know of the fact that the Plaintiff had made several calls with the Nonparty even after re-conciliation. The Plaintiff denied the fact of the call with the Nonparty, and instead borrowed the Plaintiff’s letter while intending to receive the said statement from the Defendant.

(7) After that, the relationship between the plaintiff and the defendant aggravated due to the relationship between the plaintiff and the non-party. Around May 2004, the defendant considered the above issue as a matter of concern and brought about a scambling room for the plaintiff's face. The plaintiff filed a complaint against the defendant who should be paid scambling against the defendant for the suspicion of assault, non-accupation, fabrication of private documents, defamation, etc., and the defendant filed a complaint against the plaintiff against the non-party under suspicion of adultery, defamation, etc.

(8) The instant principal 2 is currently living with the Plaintiff, and the instant principal 1 is living with the Defendant.

【Ground for Recognition: A: A; 1; 4; 5; 6-1; 2; 9; 12; 14; 18-1 through 4; 6; 2; 3; 3; 4; 4; 18-1 through 4; 3; 4; 4; 5

(c) Markets:

(1) In full view of the above fact-finding and the fact that the Plaintiff filed the instant counterclaim and the Defendant wants to divorce with the other party, the marital relationship between the Plaintiff and the Defendant shall be deemed to have ceased to exist.

In addition, the failure of a matrimonial relationship between the plaintiff and the defendant is not caused by the cause of the party's liability, but rather, the plaintiff continued to communicate with the non-party without any special reason, and has committed an act to see himself/herself due to the birth of his/her family for a considerable period of time, and the defendant did not find any way to smoothly resolve the problems between the two parties, and he/she was unable to cause the failure of the marital relationship by assaulting the plaintiff and injuring the plaintiff each time. Therefore, it is reasonable to deem that the responsibility for failure is equal to the plaintiff and the defendant.

(2) The above actions by the plaintiff and the defendant constitute grounds for divorce under Article 840 subparagraph 6 of the Civil Code, and thus, the plaintiff and the defendant's claims for divorce are all reasonable, but as long as the plaintiff and the defendant's claims for divorce are deemed to be equal to the plaintiff and the defendant's liabilities in the cause of failure, each claim for consolation money by the plaintiff and the defendant are without merit

Therefore, the plaintiff is divorced by the principal lawsuit and counterclaim.

2. Claim for division of property;

A. Facts of recognition

(1) As seen earlier, the Plaintiff is a public official of Grade 8 belonging to Seoul Metropolitan Government, and the Defendant is a public official of Grade 8 belonging to Gangnam-gu Seoul Metropolitan Government and has been punished until now since marriage.

(2) On March 1998, before filing a marriage report, the Plaintiff and the Defendant leased a multi-household house located in Gangdong-gu Seoul Metropolitan Government to KRW 43,000,000, which was created by the Defendant’s parents, and thereafter, did not have been long thereafter, moved in the apartment house located in Gangdong-gu Seoul Metropolitan Government at KRW 40,00,000, around July 1998.

After that, on July 27, 200, the Plaintiff leased a public official apartment (dong and lake omitted) located in Gangnam-gu Seoul Metropolitan Government from the Public Official Pension Management Corporation for 611-1, Gangnam-gu, Seoul, with the lease deposit up to 30,290,000 won and the lease deposit amount up to July 26, 2002, and paid all of the above deposit money. While extending the lease contract period around July 2002, the Plaintiff additionally paid KRW 6,050,000 increased lease deposit.

(3) On July 26, 2000, the Plaintiff obtained a loan of KRW 15,000,000 from our bank (former trade name: Korea Light Bank; hereinafter the same shall apply), and transferred the above money to the Defendant on April 28, 2003, by borrowing KRW 7,000,000 as a general household fund, from our company (former trade name: hereinafter the same shall apply), and around that time, the Plaintiff gave a loan of KRW 15,00,000 as a worker housing loan. On April 28, 2003, the Defendant invested part of the above money in stocks, but suffered losses.

On August 4, 2004, the Plaintiff borrowed money from friendly families, and repaid the principal and interest of KRW 15,000,000 on July 26, 200 among the above loans.

(4) As of February 2005, the Defendant bears 13,915,791 won (the date of loan April 26, 2002) in the Korea C&T Bank as of February 2, 2005 due to living expenses, etc. with the Plaintiff during the marriage period (the date of loan), 5,782,161 won (the date of loan August 9, 2002), 9,496,731 won (the date of loan August 3, 2001), 4,00,000 won in the K&T Bank (the date of loan May 29, 2002) and 9,47,421 won (the date of loan, August 23, 2001), and bears 20,000 won in the Korea Bank (the date of loan, 200,000 won (the date of loan, 200, 208.75, 2008).

[Ground for Recognition: Facts without dispute, Gap 15, Gap 17-1, 2, Eul 7, Eul 14-1 through 5, Eul 24, Eul 26-1 through 4, Eul 26-1 through 4, and the purport of the whole pleadings]

B. As to the provisional division of property

(1) According to the above facts, active property acquired by the Plaintiff and the Defendant through co-operation during their marital life is KRW 36,340,000,00 of the above public official apartment lease deposit in the Plaintiff’s name, and the passive property borne by the Plaintiff’s daily living or co-ownership of common property is KRW 15,00,000,000 for loans and friendship for the bank under the Plaintiff’s name, and KRW 99,770,770,124 for loans, and the Defendant’s net property is KRW 63,430,124 for the Defendant’s loans. The Plaintiff’s net property is KRW 14,340,00 ( KRW 36,340,000 - KRW 7,005,00,000 for the Plaintiff’s net property - KRW 17,747,707,7127,747).

(2) If one side of the couple bears the obligation to a third party during the marriage, the obligation accompanied by the formation of the joint property is subject to liquidation. As such, in principle, if one side of the couple bears the obligation subject to liquidation as above, and deducts the above obligation from the total property value, the other party’s claim for division of property cannot be accepted. However, even if the Plaintiff deducts the negative property under one’s name from the active property under one’s name, the Plaintiff bears only the surplus property, while the Defendant bears only the obligation subject to liquidation, and there is no amount remaining if the sum of the positive property is deducted from the aggregate of the couple’s positive property, the Defendant is not allowed to claim for division of property by applying the above legal principles. If the Defendant’s claim for division of property is not allowed by applying the above legal principles, the Plaintiff will possess the surplus property, and if the Defendant bears only the obligation, and if there is any remaining property as a result of deducting the aggregate of the positive property from the aggregate of all the couple’s positive property, it would be reasonable to permit the Defendant to claim for division of property.

(c) The ratio and method of division of property;

(1) In full view of all the circumstances revealed in the pleadings in the instant case, such as the process and period of marital life, the reason why the property subject to division was acquired, and the degree of contribution by the original and the Defendant to the formation and maintenance of the property subject to division as above, the background leading up to the failure, the age and health of the original and the Defendant, and the occupation, income, and livelihood of the original and the Defendant after divorce, the division ratio of property in the instant case

(2) Meanwhile, comprehensively taking account of all the circumstances revealed in the pleadings in the instant case, such as the process of acquiring the instant property subject to division, form, ownership, and use of the instant property, the division of property in the instant case ought to be clearly reverted to the current title. As a result, if the property subject to division of property falls short of the amount ultimately reverted to the Defendant according to the ratio of division of property, it is reasonable to determine that the Plaintiff pays

(3) According to the above standards, the current net property value of the Defendant is KRW 77,770,124, which corresponds to 50% of the total net property of the Plaintiff and the Defendant - the total amount of KRW 31,715,062, which falls under 63,430,124 - 31,715,062, which is short of 46,05,062, the Plaintiff should pay the amount equivalent to the above amount to the Defendant’s division of property. However, if the Plaintiff’s net property is more than the Plaintiff’s net property, it is reasonable to limit the amount to be paid as a division of property, and therefore, the amount to be paid by the Plaintiff to the Defendant as a division of property is KRW 14,340,00,00, the net property

(4) Therefore, the Plaintiff is obligated to pay to the Defendant the amount of 14,340,000 won as division of property and damages for delay at the rate of 5% per annum under the Civil Act from the day after the judgment of this case became final and conclusive to the day of full payment.

3. Request for designation of a person with parental authority and a custodian, respectively, in a principal lawsuit and counterclaim.

In full view of all the circumstances revealed in the arguments of this case, including the Plaintiff and the Defendant’s age, occupation, property level, process of marital life, distress situation of the principal of this case, the age of the principal of this case, and the birth of the principal of this case, the principal of this case 2 is more appropriate to designate the Plaintiff as the person with parental authority and the guardian for the principal of this case 2, and the person with parental authority and the guardian for the principal of this case 1 as the person with parental authority and the guardian for the principal of this case.

4. Conclusion

Therefore, the claims for divorce between the plaintiff and the defendant are accepted on the grounds of their merit, and both the plaintiff and the defendant's principal lawsuit and the counterclaim are dismissed on the grounds of their merit. It is so decided as per Disposition with regard to the claim for division of property and the claim for designation of a person with parental authority and a custodian.

Judges Ansan-jin (Presiding Judge)