2016dwards 206860. Revocation of marriage (such as, etc.)

2016drid211930 (Counterclaim) Divorce and division of property

1. Transfer00 (Law No. 1989)

Busan Address

Reference domicile

2. These ** (Law No. 1959)

3. Maximum 00 (Law No. 1960)

Plaintiff 2. 3. Address of Busan

[Defendant-Appellant]

Park 00 (Lifelong, 1989)

Busan Address

Place of service

Reference domicile

Attorney Park Jae-hoon

February 9, 2017

February 23, 2017

1. The marriage reported to the head of the Busan Metropolitan City 00-Gun 00 Eup on October 29, 2015 between the Plaintiff (Counterclaim Defendant) 00 and the Defendant (Counterclaim Plaintiff) shall be revoked.

2. Defendant (Counterclaim Plaintiff) pays as consolation money the amount of 30,00,000 won to Plaintiff (Counterclaim Defendant) 00, the amount of 15% per annum from July 23, 2016 to February 23, 2017, and the amount of 5,00,000 won per annum from the next day to the date of full payment, and 15% per annum from the next day to the date of full payment.

3. The plaintiff (Counterclaim defendant) 00 and the plaintiff * the maximum 00 consolation money claim and the defendant (Counterclaim plaintiff)'s claim for divorce and restitution claim are dismissed, respectively.

4. The plaintiff (Counterclaim defendant) 00 pays to the defendant (Counterclaim plaintiff) 20,00,000 won as division of property and 5% per annum from the day after the day when this judgment became final and conclusive to the day of complete payment.

5. The costs of litigation are assessed against the Plaintiff (Counterclaim Defendant) 00 and the Plaintiff * the largest 00, and the remainder (Counterclaim Plaintiff) respectively.

6. Paragraph 2 can be provisionally executed.

1. Main elements;

The phrase "the head of Busan Metropolitan City 00 head of the claim and the ground for the amendment" under paragraph (1) of this Article means 43,00,000 won, and the plaintiff (the counter-appellant; hereinafter "the plaintiff") shall pay to the plaintiff (the counter-appellant; hereinafter "the plaintiff") 00 the amount calculated by 10,000 won per annum from the day following the delivery of a copy of the complaint to the date of this judgment, and 5% per annum from the day of the next full payment to the day of this judgment with respect to each of the above amounts, which is calculated by 15% per annum from the day of this judgment.

2. Counterclaim;

The Defendant and the Plaintiff 00 are divorced. The Plaintiff 23,80,000,000 as division of property and restitution to its original state (the amount of KRW 22,80,000 as stated in paragraph (2) of the counterclaim appears to be erroneous) and the amount calculated by the rate of 15% per annum from the day following the delivery of the copy of the counterclaim of this case to the day of full payment.

1. Facts of recognition;

A. On March 2014, 00, Plaintiff 00 began to reach an associate system with Defendant around 2014.

B. On September 2015, the Defendant: (a) had a deep relationship with the Plaintiff 00; (b) had filed an application for the crowdfunding; and (c) on September 16, 2015, received from Samsung Tweck for crowdfunding.

C. On September 17, 2015, the Defendant: (a) had a drinking room on September 17, 2015; and (b) Plaintiff 00, who was aware of the drinking place, would be going to go to the Defendant; (c) however, the Defendant refused it and told the Defendant to bring about a dispute in the process of speaking. Plaintiff 00 was able to notify the Defendant of the decision in the process of dispute as above.

D. On September 18, 2015, the day following the day on which the foregoing drinking place was sent, the Defendant was pregnant by entering into a sex relationship with another male in the new wall.

E. Since then, the Plaintiff 00 and the Defendant agreed to the settlement, and participated in the trading at the trading market around September 19, 2015. From September 21, 2015 to September 26, 2015, Plaintiff 00 and the Defendant continued to have a sexual intercourse.

F. On October 9, 2015, the Plaintiff 00 and the Defendant confirmed the training reaction as a result of the test conducted by a pregnant woman at around 10, 2015. On October 10, 2015, the Defendant became aware of the pregnancy of the Defendant, who wished to be inside a woman in childbed, and was pregnant by the Defendant.

G. On October 29, 2015, when the Defendant was pregnant, the Plaintiff 00 and the Defendant reported the marriage to the head of the Busan Metropolitan City 00 Gun 00 Eup/Myeon on October 29, 2015, and around December 13, 2015, they lived in the wife with the Defendant on January 1, 2016, while living in the new mary officetel (hereinafter “the instant mar”).

H. On June 14, 2016, the Defendant given birth to a male baby, and confirmed the blood type of the baby after childbirth in terms of the original and the blood type that cannot be reached between the son and the son, the Defendant sought to the Plaintiff 00 on the ground that the son brought about the sex relationship with another male. On June 18, 2016, the result of the genetic test conducted on June 18, 2016 that the son did not lead to the birth relationship between the Plaintiff 0 and the son.

[Reasons for Recognition] Each entry of Gap evidence 1 to 5 (including Serials), the purport of the whole pleadings

2. Determination as to the plaintiffs' claims

A. Determination as to the plaintiff Lee 00's claim for annulment of marriage

Article 816 subparag. 3 of the Civil Act provides that “A person may file a claim for annulment of marriage with a legal source when he/she expresses his/her intention of marriage by fraud or coercion.” Here, “Fraud” includes not only cases where the party or a third party actively notifies the fact that the party or the third party is guilty, but also cases where the party or the third party is not informed of the fact passively. However, in cases of non-disclosure or silence, the duty to notify the circumstances in advance under statutes, contracts, customs, or cooking may be recognized as unlawful deception. Whether a duty of disclosure is recognized under the custom or sound reasoning can be determined as follows: (a) the party’s age, whether the party or the third party was married, whether the party or the third party’s perception of the impact on the decision of marriage; (b) whether the party or the third party’s perception is essential to form a custom and trust; (c) whether the party’s reputation or privacy is a party’s reputation or public morals; (d) whether the party or the third party is aware of social values or morals in question; and circumstances.

As can be seen from the perspective of the overall purport of arguments and facts of this case, if the defendant drinks with the plaintiff Lee 00 even though he was under the premise of marriage with the plaintiff Lee 00, the defendant had a sexual intercourse with the other male. Although he had a sexual intercourse with the plaintiff Lee 00, he had a significant possibility that he was pregnant with the plaintiff Lee 00, or could not be the plaintiff's her son at least after he was able to fully recognize the above possibility, he was pregnant with the plaintiff Lee 00. In other words, even if the plaintiff Lee 00 and the defendant did not actively and actively deceiving the defendant, even if she had no intention of deceiving the plaintiff Lee 1, it seems that the pregnant baby might not be the plaintiff's son, and the plaintiff Lee 1 was able to have sufficiently predicted that she was pregnant and reported by the defendant, and that she could not be aware that she had a significant impact on the plaintiff's social values and ethics before her marriage, it could not have been known that her was an unlawful one of the plaintiff's women.

Therefore, on October 29, 2015, the marriage between the plaintiff Lee 00 and the defendant shall be revoked.

B. Judgment on the plaintiffs' claim of consolation money

The defendant's above deceptive act is obvious in light of the empirical rule that the plaintiff Lee 00 who is the party to the marriage and the plaintiff's father who is the plaintiff's mother, *, the maximum 00 has suffered from mental pain. Thus, the defendant is obligated to pay consolation money in cash. Considering all the circumstances shown in the arguments of this case, such as the above marriage and the period of marital life, the relationship between the plaintiffs, the cause and the degree of responsibility for the revocation of the marriage, it is reasonable to determine that the defendant pays consolation money of KRW 30 million to the plaintiff Lee 00,000, the plaintiff **, the maximum 00, respectively.

Therefore, the defendant is obligated to pay the plaintiff Lee 00,00 won as consolation money, the plaintiff *, the plaintiff *, the maximum 00,00 won each of the above five million won and the damages for delay calculated at the rate of 5% per annum under the Civil Act from July 23, 2016 to February 23, 2017, which is reasonable to dispute over the existence or scope of the defendant's duty of performance, as the plaintiffs seek against the plaintiff Lee 10,000 won each of the above five million won and the damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the day of full payment.

3. Determination on a counterclaim

A. Determination on the claim for divorce

As seen earlier, as long as Plaintiff 00’s claim for the revocation of marriage due to Defendant’s deception was accepted, the remainder of the Defendant’s claim for divorce is without any need to further examine.

B. Determination on the division of property and the claim for restitution

1) Details of property formation

A) On October 29, 2015, Plaintiff 00 acquired the instant officetel in its name in KRW 70 million (including KRW 20 million loaned on or around January 8, 2016) from Busan Bank in its name after the marriage report, and KRW 20 million provided by the Defendant’s fish money, Plaintiff * * with the maximum 00 monetary support, and Plaintiff 00 acquired the instant officetel in KRW 140 million under the name of Plaintiff 00 on December 24, 2015.

B) Meanwhile, the Defendant’s mother subsidized KRW 2.3 million for the interior cost of the instant officetel, and the Plaintiff paid KRW 3 million for licensed real estate agents’ fees and legal expenses while purchasing the instant officetel.

C) On December 13, 2015, the Plaintiff 00 and the Defendant posted a marriage ceremony on December 13, 2015, and the monthly price per month at the wife.

Since January 2016, 2016, she was living together with the instant officetel, which was a new house, and the Plaintiff 00 was issued as a holiday on February 2, 2016, and she lived with the weekend.

D) Meanwhile, after reporting the marriage with the Plaintiff, the Defendant lived as the full-time supervisor after reporting the marriage.

2) Property subject to division of property

A) Active property under the Plaintiff’s name: The instant officetel (value of KRW 140,000,000)

B) Small property under the Plaintiff’s name: Loans to Busan Bank amounting to KRW 70 million

C) Active and negative property under Defendant’s name: None of the following:

D) Net property under the Plaintiff’s name: KRW 70 million ( = 140 million = - 70 million - KRW 70 million)

[The grounds for recognition of the above 1) and 2) Gap 3 to 7 (including where there are several numbers), and Eul 3 to 6

Each entry of evidence, the purport of the whole oral argument

3) Judgment on the defendant's assertion

① The Defendant’s mother paid to the Plaintiffs a total of KRW 4.5 million, and the Plaintiff *, the maximum of KRW 00,00 to the Plaintiff 0 and the Defendant’s husband and wife paid KRW 3 million for each of the said money, and subsequently returned each of the said money. In this process, the Plaintiff 00 paid KRW 1.5 million for the interest of KRW 1.5 million. The Defendant’s mother provided KRW 2.3 million for the instant officetel’s artificial test cost, and the Defendant’s mother provided KRW 2.3 million for the instant officetel’s artificial test cost, which, therefore, the Plaintiff 00 claimed that the Defendant return KRW 1.5 million and KRW 2.3 million, a total of KRW 3.8 million, equivalent to the above difference, to its original state.

On the other hand, under Article 824 of the Civil Act, since the effect of revocation of marriage is not retroactive, the past marital life of us is valid, and the period of marriage between e.g., e., e., e., e., e., e., the defendant's claim for restitution of this part of the defendant's claim for restitution of this part of the marriage, which is sought by e.g., that part of the above circumstances has been extinguished within the short time limit, is without merit.

4) Ratio and method of division

In light of the degree of each contribution made by Plaintiffs 00 and Defendant, the period of marriage between Plaintiffs 00 and Defendant, the contents of married life and the marital life, etc., division of property shall be made at the rate of 5/7 and 2/7 for Defendant 100, and the division of property shall be made at the rate of 2/7, but the division of property shall be made at the rate of the above pro rata property portion by Plaintiff 00 to Defendant.

5) Sub-decisions

Therefore, the Plaintiff 00 is obligated to pay to the Defendant the amount of KRW 20 million as division of property ( = KRW 70,000,000 x 2/7) and the amount calculated by the rate of 5% per annum as stipulated by the Civil Act from the day following the day when the judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim for annulment of marriage by 00 is justified, and the plaintiffs' claim for consolation money is accepted within the scope of the above recognition. The plaintiffs' remaining above claim for consolation money, the defendant's claim for divorce, the defendant's claim for restitution, and the restoration to original status are dismissed for each reason. It is so decided as to the defendant's claim for division of property as above. It is so decided as per Disposition.

Judges Park Sang-sung