Claimant

Other party (Law Firm Shinyang, Attorney Park Dong-op, Counsel for the plaintiff-appellant)

Seoul Family Court Decision 2003Ra2168 dated December 29, 2004

1.The original adjudication shall be modified as follows:

(a)the other party is the supporting fee for the claimant;

(1) pay 32,280,000 Won; and

(2) The amount of KRW 1,200,000 per month from May 1, 2005 to the time when the marriage relationship is terminated shall be paid at the end of each month.

B. The appellant's remaining appeal is dismissed.

2. The adjudication costs of this case are individually borne.

1. The purport of the claimant's claim and appeal

The part of the original adjudication against the claimant shall be revoked. The other party shall pay to the claimant 2,50,000 won per month from May 1999 to the time of the marriage settlement at the end of each month.

2. Purport of appeal by the other party;

The part of the original adjudication against the other party shall be revoked, and the appellant's appeal against that part shall be dismissed.

1. Facts of recognition;

The court's reasoning for this part is that "the judgment of winning part of the other party's repayment except for the amount repaid by the other party becomes final and conclusive" in Section 1 (e) of the original adjudication (section 13,14 of the original adjudication) is "the other party's partial winning judgment excluding the remainder of KRW 12,356,300 other than the remainder of KRW 88,643,700 repaid or paid in substitution by payment by the other party becomes final and conclusive," and "(No. 4 of the original adjudication)" in Section 1 (h) of the original adjudication is classified as "(No. 4 of the original adjudication)" as "(the subject of the tax deduction amount)," and this is cited as it is, except for adding paragraphs (13,643,700 of the original adjudication.

I. Meanwhile, on the other hand, the claimant filed a lawsuit of revocation of marriage as a counterclaim against the other party on the ground that the other party had no intention to live as a husband and wife by marriage with the claimant and had had such intent, by deceiving the claimant as if he had had such intent, but the other party had been married (Scheon District Court Gangnam Branch Branch of 2000Dhap90), and on December 10, 2002, the judgment of loss became final and conclusive upon rejection of the appeal.

(j)the monthly average household expenditure of an urban household (3.41 head of a household) on the basis of the quarter of January 2005 is KRW 2,541,785.

(k) The claimant did not separately claim the support fee to the other party prior to the petition for the instant lawsuit on the support fee.

2. Determination

A. As to the claim for support fees prior to the instant appeal

Although the mutual support duty between husband and wife under Article 826(1) of the Civil Act naturally arises when one side of the husband and wife needs to be supported, barring any special circumstance, the person to be supported can claim the payment of the support allowance only after the person to be supported has failed to perform the support duty despite the person to be supported requested the support duty, and the person to be supported cannot claim the payment of the support allowance before the person to be supported requested the performance of the support duty is consistent with the nature of the support duty or the concept of equity (see Supreme Court Decisions 91Meu375, Nov. 26, 1991; 90Meu781,798, Oct. 8, 1991; 90Meu7898, Oct. 18, 1991). Thus, the claimant's claim for the support allowance before the person to be supported did not separately claim the support allowance to the other party. Thus, the claimant's claim for the payment of the support allowance in this case is without merit.

B. As to the claim for support fees after the instant appeal was filed

(1) Occurrence of obligation to pay support fees

According to the above facts, as the husband of the claimant, the other party is obligated to pay the support fees or living expenses between the husband and the wife after the appeal of this case.

As to this, the other party asserts that it is impossible for the claimant to respond to the claim for support fees because he/she fails to perform his/her duty of living together, so the claimant and the other party are separate from the other party after February 192, 192, as seen earlier. However, the other party's former wife and his/her father and his/her father and wife are separated from the other party. Meanwhile, the other party's former wife and his/her father and his/her married life of the other party are separated from the other party. The other party's former wife and the other party are eventually separated from the other party. On November 27, 1999, the other party filed a lawsuit for preliminary divorce, and the other party filed a lawsuit for preliminary divorce, but the judgment dismissing the claim became final and conclusive by dismissal of appeal on December 10, 2002. In light of all the circumstances revealed in the examination process of this case, it is reasonable to deem that the separate living between the claimant and the other party mainly caused a cause attributable to the other party, notwithstanding the other party's request for living without justifiable reasons.

(2) Amount and method of payment of support fees;

In full view of all the circumstances revealed in the process of the examination of this case, such as the fact that the claimant was unable to have any particular income after his retirement from the workplace going at around May 1999, the monthly average household expenditure of 3.41 urban households is 2,541,785, the fact that there is no other dependent family member, the age, occupation, income, property status, family relationship, and ordinary living expenses of the claimant and the other party, the other party shall pay 32,280,000 won (26 months from February 4, 2003 to April 30, 2005) + 27/30 months (from April 3, 2005 to April 4, 2005) from the date following the delivery of the written request for the support fee of this case to the date of April 30, 200, 000 won to the date of 27/30 months (the other party's last day of April 205 to April 30, 20001).).

(3) Sub-determination

Therefore, the other party is obligated to pay 32,280,000 won per month from May 1, 2005 to the time when the marriage relationship between the claimant and the other party is settled.

3. Conclusion

If so, a claimant's petition for a trial is accepted within the above scope of recognition, and the remainder is dismissed as there is no ground, and since the original judgment is partially unfair in its conclusion, it is so decided as per Disposition by changing the original judgment as above.

Judges Kim Jong-soo (Presiding Judge)