In a lawsuit of divorce, etc. between A and B, where the first instance court designated A and B as joint custody holder and joint custody holder with respect to the claim for designation of person with parental authority and custody holder with respect to child C, the case holding that C’s person with parental authority and custody holder was designated in light of all the circumstances, including the following: (a) it is difficult to see that designating A and B as joint custody holder with care holder; and (b) it was difficult to see that C’s designation as joint custody holder was desirable for the welfare of C’s welfare; and (c) it was shown that C had expressed the form of natural contact and stability when A and B were accompanied

In a case where the first instance court designates Gap and Eul as joint custody holder and Eul as joint custody holder with Gap and Eul with respect to the claim for designation of person with parental authority and custody holder with respect to Byung's child Byung in the lawsuit of divorce between Gap and Eul, the case holding that it is difficult to see that the joint custody after divorce is made by the first instance court as joint custody holder and assistant holder Eul, and that the stability of life is not ensured due to two children's living under the two decision-making holders; where the hostile relation continues between the parents, there is concern that children will face shock, and that it is naturally acceptable that the divorced party's frequent contact is likely to occur in our society, and in particular, it is difficult to see that the method of joint custody as determined by the first instance court is substantially different from that of designating Gap as joint custody holder and joint custody holder, and that it is difficult to see that there is a conflict between Gap and Byung's natural welfare as a person with parental authority and the first instance court's child care assistant after the first instance court's decision, and that it appears that the conflict between Byung and the first instance court's branch.

Articles 837, 837-2, and 909(5) of the Civil Act

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim (Law Firm P & P, Attorneys Kim Il-san, Counsel for defendant-Counterclaim)

Principal of the case

Incheon Family Court Decision 2015Ra109256, 2016Ra102917 decided June 1, 2017

September 29, 2017

1. Of the judgment of the court of first instance, the part concerning a principal lawsuit and a counterclaim for the designation of a person with parental authority and a custodian, and a claim for future child support in the principal lawsuit shall

A. The plaintiff (Counterclaim defendant) shall be designated as a person with parental authority and a custodian of the principal of the case.

B. The Defendant (Counterclaim Plaintiff) pays 500,000 won per month to the Plaintiff (Counterclaim Defendant) on the last day of each month from the day following the day when this judgment became final and conclusive to the day when the principal of the case becomes adult.

2. The Defendant (Counterclaim Plaintiff) may visit the principal of the case until the principal of the case becomes adult, and the Plaintiff (Counterclaim Defendant) shall actively cooperate with the Defendant (Counterclaim Plaintiff) so that the visitation right can be exercised smoothly, and shall not interfere with this.

(a) Interview negotiation schedule: Two times each month, two weeks, and four weeks, and 10:00 to 20:00 on the following day;

(b) Place for visitation right: A place designated by the Defendant-Counterclaim Plaintiff;

(c) Method of delivery: The method by which the defendant (Counterclaim) takes the principal of the case into the domicile of the plaintiff (Counterclaim defendant) and receives the principal of the case from the plaintiff (Counterclaim defendant), and the defendant (Counterclaim defendant) takes the principal of the case into the residence of the plaintiff (Counterclaim defendant) after completing the visitation right, and then transfers the principal of the case to the plaintiff (Counterclaim defendant).

(d) Other: the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) may change the time limit, place, and method of delivery of the visitation, under mutual agreement between at least three days prior to the said date.

3. The appeal by the Defendant (Counterclaim Plaintiff) and the remaining incidental appeal by the Plaintiff (Counterclaim Defendant) are dismissed, respectively.

4. The total costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

5. The above paragraph 1(b) may be provisionally executed.

1. Purport of claim

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") are divorced by the principal lawsuit. The defendant shall pay 20 million won as consolation money and 15% interest per annum from April 11, 2017 to the day of complete payment from the day following the day of delivery of a copy of the claim for modification of the purport of claim and the cause of claim to the plaintiff. The defendant shall pay to the plaintiff 19,963,245 won as division of property and the amount with 5% interest per annum from the day following the day of complete payment to the day of complete payment. The defendant shall designate the plaintiff as the person with parental authority and the guardian of the principal of this case. The defendant shall pay 4,00,000 won as the child support of the principal of this case in the past of the principal of this case to the plaintiff in the future of the principal of this case. The defendant shall pay 19,963,245 won per annum to the day following the end of 00th day of the original claim and the cause of the amendment.

Counterclaim: The plaintiff and the defendant are divorced by counterclaim. The plaintiff shall pay to the defendant 20 million won as consolation money and 15% interest per annum from the day following the day of service of a copy of the counterclaim of this case to the day of complete payment. The plaintiff shall pay to the defendant 90,234,93 won as division of property, and 5% interest per annum from the day following the day of confirmation of this judgment to the day of complete payment. The plaintiff shall designate the defendant as a person with parental authority and the custodian of the principal of this case. The plaintiff shall pay 5,00,000 won to the defendant for the past child support of the principal of this case. The plaintiff shall pay to the defendant 1,00,000 won per annum from the day following the day of service of a copy of the counterclaim of this case to October 31, 2032 as the last day of each month.

2. Purport of appeal

The main lawsuit: The part against the defendant among the claims for divorce in the judgment of the court of first instance, designation of a person with parental authority and a person with parental authority, shall be revoked, and the plaintiff's claims corresponding

Counterclaim: Revocation of the part against the Defendant in the counterclaim, consolation money, designation of person with parental authority and person with custody, child support in the past, and future child support claim in the judgment of the court of first instance is revoked. The Plaintiff shall pay to the Defendant as consolation money 20 million won and 15% per annum from the day following the day of delivery of a copy of the counterclaim to the day of complete payment. The Plaintiff shall designate the Defendant as a person with parental authority and person with custody of the principal of this case. The Plaintiff shall pay 5,000,000 won to the Defendant as the child support in the past of the principal of this case. The Plaintiff shall pay to the Defendant for the future child support of the principal of this case from the day following the day of delivery of a copy of the counterclaim to October 31, 2032.

3. Purport of incidental appeal;

In this lawsuit: The part against the plaintiff in the principal lawsuit of the judgment of the first instance is revoked. The defendant shall pay consolation money to the plaintiff at the rate of 15% per annum from April 11, 2017 following the delivery date of the purport of the claim and the copy of the application for modification of the cause of the claim to the plaintiff, and from April 11, 2017 to the day of complete payment. The plaintiff shall be designated as the person with parental authority and the custodian of the principal of the case. The defendant shall pay 500,000 won per month from the day following the day when the judgment of the court of first instance to the day when the principal of the case reaches the majority of the principal at the end of each month [the plaintiff shall pay the plaintiff for future child support at the first instance court, and the plaintiff shall be served with a copy of the application for modification of the purpose of the claim and the cause of the claim to the plaintiff, but the plaintiff shall be deemed to be entitled to the payment of the child support from the date following the judgment of the court below to the next day of appeal."

Counterclaim: Revocation of the part against the plaintiff among the part of the claim for counterclaim divorce or designation of a person with parental authority or a person with custody, and the defendant's claim corresponding to the revoked part is dismissed.

1. Scope of the judgment of this court;

In the first instance court, the plaintiff filed a claim for divorce, consolation money, division of property, designation of a person with parental authority and a child support, future child support, and future child support against the defendant as the principal lawsuit. The defendant at the first instance court accepted the plaintiff's counterclaim for divorce, consolation money, division of property, designation of a person with parental authority and a child support, past child support, and future child support. The first instance court partly accepted the principal lawsuit and counterclaim divorce claim, and dismissed the principal lawsuit and counterclaim property division claim, the principal lawsuit and counterclaim property division claim, the principal lawsuit and counterclaim past child support claim, and the future child support claim. In addition, with respect to the principal lawsuit and counterclaim, the plaintiff and the defendant jointly designated the person with parental authority as the person with parental authority and the assistant, the principal child and the plaintiff were designated as the person with parental authority. Accordingly, the defendant did not object to the claim for divorce, consolation money, past child support, dismissal of future child support, and part of the claim for divorce and counterclaim designated the person with parental authority and the person with parental authority and the counterclaim for child support claim as mentioned above.

2. Determination on the principal lawsuit and counterclaim divorce and the claim of consolation money

A. Facts of recognition

1) The Plaintiff and the Defendant are legally married couple who reported marriage on January 3, 2013, and have the principal of the case as their children.

2) Both the Plaintiff and the Defendant are serving as elementary school teachers at ○○○ from the time of marriage to the date of marriage.

3) From March 2013 to February 2014, the Plaintiff, along with the Nonparty, who was a female teacher living in the vicinity of the Plaintiff’s lane, was to commute to and from work. There was a serious conflict between the Plaintiff and the Defendant from the beginning of marriage.

4) The Plaintiff and the Defendant thought that the other party did not consider one’s own, and subsequently, did not raise a complaint, and the Defendant asked that the Plaintiff would go out, and led to conflict due to various reasons, such as differences in the nature of each other.

5) While the Plaintiff and the Defendant received a variety of marital counseling from the △△ Family Counseling Center located in the Gangnam-gu Seoul Metropolitan Government Dong between January 3, 2015 and March 1, 2015, the relationship between the two parties has not been improved despite the aforementioned efforts.

6) The Plaintiff and the Defendant had a lot of disputes even after the above marital counseling. During that process, there was a case where a police officer reported physical fightings in the process, and around July 24, 2015, the police officer, who was reported, sent to the scene where the Plaintiff and the Defendant had a dispute.

7) On September 2015, the Defendant sent a text message to the Plaintiff, “assumed to the Plaintiff, the right to divorce in September to December, 2015,” “assumed to the Plaintiff,” “assumed to the Plaintiff,” the right to rear, and transferred to another City/Do in December

8) On September 30, 2015, the Plaintiff and the Defendant began to separate the Plaintiff’s principal from the Plaintiff’s home.

9) On November 30, 2015, the Plaintiff filed the instant principal suit against the Defendant.

10) The Plaintiff and the Defendant began living together again on January 19, 2016. Following the frequent dispute between the two parties, and the Plaintiff voluntarily withdrawn the instant principal lawsuit on January 28, 2016, but the Defendant submitted a written consent to withdraw the lawsuit to the court of first instance on February 12, 2016 (the Plaintiff thereafter presented his/her intention to divorce with the Defendant by listing the Defendant’s causes attributable to the Defendant in the preparatory document as of April 5, 2016 submitted to the court of first instance (the Plaintiff subsequently expressed his/her intention to divorce with the Defendant, and maintained his/her intention to divorce with the Defendant consistently until the date of closing argument at the trial thereafter).

11) Around that time, the Defendant proposed that the Plaintiff be a director of a new residential area that the Plaintiff wants, but the Plaintiff did not accept it, and the conflict between the two parties has deepened. Around February 18, 2016, the Plaintiff’s house and two persons began to finally select.

12) On April 6, 2016, the Defendant filed the instant counterclaim against the Plaintiff.

13) Meanwhile, on September 30, 2015, the principal of the instant case started to raise the Plaintiff while having come to work together, but again, from October 8, 2015 to November 2015, the Defendant, from November 30, 2015 to November 30, 2015, had frequent changes, such as raising the Plaintiff and the Defendant from December 1, 2015 to January 18, 2016.

14) The Plaintiff and the Defendant, from January 19, 2016, were living together and brought up the principal of this case together. However, from February 18, 2016 to May 2016, the Defendant brought up the principal of this case, and from May 2016, the Plaintiff began to bring up the principal of this case again.

15) The Defendant had regularly interview the principal of the instant case in the process of the first instance family investigation. However, on January 1, 2017, the Defendant started bringing the instant principal to the Plaintiff on January 30, 2017, without having to take the instant principal back to the Plaintiff, who was going to go to the Plaintiff for the interview during the period of the year of the leave of absence.

16) On March 9, 2017, the Plaintiff and the Defendant agreed to conduct the visitation right from 10:00 on each Saturday to 20:00 on the second day of the trial of the first instance on March 9, 2017. On April 10, 2017, the Plaintiff and the Defendant agreed to conduct the visitation right. On April 8, 2017, the Plaintiff moved to the principal of the instant case for the visitation right, and began to rear the principal of the instant case without having known the Defendant of the instant principal at around 20:00 on the same day.

17) On April 13, 2017, the Plaintiff and the Defendant stated on the third day for pleading of the first instance trial on April 13, 2017, the Plaintiff and the Defendant stated that “Until the first instance judgment of this case is rendered, the Plaintiff is in accordance with the lien curriculum to the instant principal’s apartment apartment located in the Guro-gu Seoul Metropolitan City, Guro-gu, Seoul Metropolitan City, for the purpose of having him/her go to the kindergarten located in the Dong-dong, Dong-dong, Dong-dong, Seoul, and that “If the principal of this case is voluntarily

18) As the judgment of the court of first instance was rendered on June 1, 2017, the Plaintiff and the Defendant were designated as joint parental authority. The principal custodian was the Defendant, and the principal custodian was designated as the Plaintiff, and the Defendant delivered the principal of the case to the Defendant around June 4, 2017, and thereafter, the Defendant mainly took part in the principal of the case until the date of closing argument in the court of first instance.

[Based on recognition] Gap evidence Nos. 1 through 4, 9, 10, 14, 17 (excluding the case of separately indicating the paper numbers; hereinafter the same shall apply), Eul evidence Nos. 11-2, Gap evidence Nos. 5 through 8, 15, 16, Eul evidence No. 16, the result of inquiry into the family counseling center of the court of first instance on the family in △ branch (the reply of December 10, 2016), the results of inquiry into the family counseling center of the court of first instance on the family (the reply of December 10, 201) and the purport of the whole pleadings

B. Determination

1) A principal lawsuit and a counterclaim divorce claim

A) Whether the marriage has broken down or not

In light of the above facts and the fact that the plaintiff and the defendant have filed a claim for divorce through the main claim and counterclaim, and only criticizes each other by asserting the causes attributable to the other party, and do not make any effort to maintain the marital life, the marital relationship between the plaintiff and the defendant seems to have become difficult to recover.

B) The principal responsibility for the failure of marriage

(1) In the event that the instant matrimonial relationship has broken down, it is difficult to understand and protect the other party with difficulties, faith, and inside to protect the other party, thereby failing to make every effort to maintain the marital life, and the both the Plaintiff and the Defendant are responsible for certain parts of the marriage relationship. Such responsibilities of the both the Plaintiff and the Defendant are equal to the extent that it is difficult to see that either

(2) The plaintiff shows severe emotional distress due to depressions, etc., and several times during the marriage period were made frequently to the plaintiff, and the plaintiff used verbal abuse or violence frequently to the plaintiff, and the defendant's parents unilaterally committed verbal abuse or violent violence to the plaintiff while exercising the defendant's convenience. The defendant's principal responsibility for the failure of marriage is alleged to the defendant. Thus, the plaintiff's argument is insufficient to deem the failure of marriage as the main responsibility for the failure of marriage due to the above causes as alleged by the defendant. Thus, each of the images of evidence Nos. 5 through 8, 11 through 13, 15, 16, 20, 21, 33 through 35, 59 through 69, 59, and 69 are insufficient, and there is no other evidence to acknowledge this otherwise.

(3) During the marriage period, the defendant neglected to care for home affairs and children, committed sexual traffic or committed violence against the defendant, and the plaintiff's parent also abused or abused violent language to the defendant. Since the plaintiff's parent claims to the effect that the principal responsibility for the failure of the marriage lies in the plaintiff, it is insufficient to view that the plaintiff is mainly responsible for the failure of the marriage due to the above causes attributable to the defendant's assertion. The above assertion by the defendant is without merit, and there is no other evidence to acknowledge it.

C) Sub-determination

Therefore, the plaintiff and the defendant have grounds for judicial divorce under Article 840 subparagraph 6 of the Civil Act. Thus, the plaintiff and the defendant's principal lawsuit and the defendant's claim for judicial divorce are well-grounded (the plaintiff claims that there exists a ground for judicial divorce under Article 840 subparagraph 2 and 3 of the Civil Act to the defendant, and the defendant claims that there exists a ground for judicial divorce under Article 840 subparagraph 1 and 3 of the Civil Act to the plaintiff, but the evidence under Article 840 subparagraph 1 and 3 of the Civil Act is insufficient to deem that the above ground for judicial divorce as alleged by the plaintiff and the defendant exists, and there is no other evidence to acknowledge this differently, each part of the plaintiff and the defendant's claims are without merit)

2) Claim for consolation money for principal lawsuit and counterclaim

As the plaintiff and the defendant are mainly responsible for the failure of the marriage between the plaintiff and the other party, they claim consolation money in their principal lawsuit and counterclaim by asserting that they are responsible for compensating for mental damage caused by the failure of the marriage. However, as seen earlier, as long as the failure of the marriage of this case has a certain portion of responsibility to both the plaintiff and the defendant, and the degree of liability is deemed equal, the plaintiff and the defendant's claims for consolation

3. Judgment on the claim for child support in the past of a counterclaim

In light of the following circumstances, the facts found earlier, which were recognized as the whole purport of pleading, namely, from September 30, 2015 when the Plaintiff and the Defendant were living together, until January 19, 2016, which began to be living again from September 30, 2015 to January 19, 2016, and from February 18, 2016, until the first instance judgment designating two persons as joint parental authority and custody holder of the principal of this case is sentenced, and it is difficult to see that the period of fostering one person is absolutely superior, and that the period of fostering one person is designated as the joint custody holder of the principal of this case until the date of closing argument after the sentence of the first instance judgment, it seems that allowing either of the Plaintiff and the Defendant to bear the past child support of the principal of this case would result in a violation of equity. Thus, the Defendant’s claim for child support in the past is without merit.

4. Determination as to the principal lawsuit and counterclaim, designation of a person with parental authority and custodian, and claim for future child support

The following circumstances are considered to have been comprehensively taken into account the Plaintiff’s family report by the first instance court (including each family counseling report by the principal of the first instance court), and the overall purport of oral argument, i.e., the principal of the case appears to have been making unstable to the Plaintiff and the Defendant due to frequent changes in rearing. However, the principal of the case appeared to have been bringing up more to the Plaintiff at the time of their birth and stable behavior. ② The principal of the case was raising the Plaintiff from around May 2016 to about 32 months, and it was difficult for the Plaintiff to designate the Plaintiff as a fosterer for a relatively short period of 7 months since the date of the instant case’s birth, which would have been inappropriate for the Plaintiff to be designated as the principal of the case’s emotional and physical development. ③ Even if the Plaintiff had been able to bring up the principal of the case more than 0, the Defendant continued to appear to have been able to bring up the Plaintiff an apartment again for a short period of 17 months from the date of the instant case’s birth.

[The court of the first instance selected the defendant as the principal rearing of the case, and the assistant rearing of the plaintiff as the joint rearing method of designating the plaintiff. However, the joint rearing after divorce is difficult to be considered to have a difference between the plaintiff and the defendant surrounding the principal of the case after the judgment of the first instance court, in light of the following: (a) the joint raising of the plaintiff after divorce is made between the two children, and the stability of life is not ensured by living under two decision-making persons; (b) there is a concern that the child might face shocking; and (c) there is no natural acceptance of the divorced parties to have frequent contact in our society; (d) there is a concern that the negative aspect might occur if one or both re-born, there is more negative aspect; and in this case, it is difficult to see that there is a difference between the plaintiff and the defendant about the principal of the case after the judgment of the first instance was rendered, and that there is no difference between the plaintiff and the defendant about the principal of the case and the defendant about the formation of the child's welfare as the principal of the case for 20 days through consultation.

5. Determination ex officio on visitation right

As long as the Plaintiff was designated as the custodian of the principal of this case, the Defendant and the principal of this case, who do not directly rear the principal of this case under Article 837-2 of the Civil Act, have the right to have an interview right. Considering all the circumstances shown in the arguments of this case, such as the age, gender, parenting situation of the principal of this case, and the intention of the parties, it is reasonable to determine the frequency, time, method, etc. of the interview right as described in Paragraph 2 of this case, for the emotional stability

6. Conclusion

Therefore, the plaintiff and the defendant's claims for a principal lawsuit and a counterclaim divorce are accepted for each reason, and they are dismissed for each reason. The plaintiff and the defendant's claims for a consolation money for the principal lawsuit and the counterclaim are dismissed for each reason. The plaintiff and the defendant's claims for designation of a person with parental rights and a person with custody, the defendant's claims for a child support in the past of the counterclaim, and the plaintiff and the defendant's claims for a future child support in the principal lawsuit and counterclaim. The conclusion of the judgment of the court of first instance is just, and the part of the claim for a principal lawsuit and counterclaim and a counterclaim, a counterclaim and a person with parental rights and a person with custody, the designation of a person with custody rights and a person with custody, and the part of the claim for future child support in the principal lawsuit and counterclaim are inappropriate for each reason. Thus, the part of the plaintiff's incidental appeal is partially accepted, and the part of the plaintiff's appeal and the plaintiff's remaining incidental appeal are dismissed

Judges Kang Jae-sung (Presiding Judge)

1) In a petition of appeal filed by the Defendant at the trial court, the purport of the appeal against the part dismissing a counterclaim of division of property was also stated in the purport of appeal, but this part of the appeal was withdrawn at the first date for pleading of the trial court.