2009Rahap000 (The division of property in this case)

2010Shap00 (Re-trials) Division of Property

A male who has been born for 50 years.

55 Womens of birth

September 17, 2010

1. The other party (the counter-appellant) shall pay to the claimant (the counter-appellant) 195, 189, 531 won as division of property and 5% interest per annum from the day after the judgment becomes final to the day of full payment.

2. The other party's claim for adjudication (the claimant for adjudication) is dismissed.

3.The costs of the trial shall be borne by the other party (the claimant for the counter-trial) in combination with this and semi-trials.

1. Main Trial: The other party (hereinafter referred to as "the other party") is the first party.

Property division to the claimant (the other party to a trial; hereinafter referred to as "Claimant")

In the case of this case as to 1/2 shares of each of the real property listed in Ro, [Attachment]

title transfer registration procedure due to the division of property on the board shall be

§ 36,411,00 and full payment from the day after the day when the judgment of this case is finalized.

(d) pay 5 per cent (5%) interest per annum until the date. Preliminary, the award:

The claimant's property division amount of 200,000,000 won

5% per annum from the day after the day when the adjudication of this case is finalized to the day of full payment.

(1) pay any money under subsection (1).

2. Anti-trial: The claimant shall be one hundred and thirty-six thousand won, sixty-seven-eight won, and one half-eight won, as the other party’s division of property.

from the date of delivery to the date of full payment of the request for the counter-appeal of this case

20% interest shall be paid in 20% interest.

1. Basic facts

According to the records of this case and the purport of the whole examination, the following facts can be acknowledged.

A. The claimant and the other party completed the marriage report on April 1, 1993, and they were legally married, and under sleep** (living on April 12, 1993).

B. The claimant and the other party worked as a local public official of ○○○-gu and the other party as an employee of the Medical Center of Bright University until September 2005, when the other party was working for the medical center of Bright University, they were in charge of the applicant’s benefit passbook, and the other party was in charge of managing the applicant’s benefit passbook, **** et al.’s children and children, or used for living expenses. From October 2005 to December 2007, the claimant transferred the remaining money to the other party by account transfer of KRW 2,50,000 per month from January 2008 to December 2007 ****** was not paid in full excluding some educational expenses, etc. in the name of the applicant.

C. On March 5, 2008, the other party filed a lawsuit against the claimant for divorce, etc. including the Seoul Family Court***** (the other party did not file a claim for division of property). On April 8, 2008, the claimant filed a lawsuit for divorce, division of property, etc. with Seoul Family Court 2008 Ma*********** as a counterclaim. They were divorced on April 30, 2008 by voluntary conciliation as described in paragraph (d) below (hereinafter referred to as “former lawsuit”).

(d) A conciliation clause in a prior suit;

(1) An appellant and the other party shall be divorced.

(2) An appellant shall pay 2,00,000 won to the other party by May 30, 2008. If a claimant delays the payment, he/she shall pay the other party a delay interest at the rate of 10% per annum with respect to the unpaid principal.

③ As a result of the division of property, the claimant is paid KRW 260,00,00 from the other party, and at the same time, the other party is paid KRW 1/2 of the claimant's share in Seoul, 00-Gu 00 apartment 1 and 407 (hereinafter referred to as "non-case apartment 407 (hereinafter referred to as "the non-case apartment 407") on April 30, 2008. The other party is implementing the procedure for the registration of ownership transfer due to the self-property division on April 30, 208. The other party shall be paid KRW 260,00,000 to the claimant by May 30, 2008, and if the payment is delayed, damages for delay shall be paid at the rate of 10% per annum to the unpaid apartment.

(4) The designation of persons exercising parental authority over a child and persons fostering such child and the payment of child support shall be omitted)

(5) Except as provided above, the claimant and the other party shall not claim monetary money under any pretext, such as consolation money or division of property, in connection with the divorce of this case.

(6) The other party shall waive the remainder of a claim on the principal lawsuit, and the claimant shall waive the remainder of a counterclaim.

(7) Litigation costs and conciliation costs shall be borne by each person.

E. On May 30, 2008, the claimant, with the cooperation of the other party after the judgment of the previous suit, borrowed KRW 260,00,000,000 among the property division amounting to 200,000,000 according to the conciliation under the name of the other party as collateral, and on May 30, 2008, the other party provided a separate apartment in Gwangjin-gu with his own money from the financial institution. However, on the other hand, the other party did not receive the remainder of KRW 60,00,000,000 from the other party, and still lived with the other party.

F. On February 8, 2009, the claimant was employed as the director of the ○○ Office on the ground that he had not completed the divorce report, and reported the property as a person subject to the property registration, but was designated as a bona fide property registration on the ground that some property under the other party’s name was not registered on June 20, 209. At the time, there were real estate listed in the name of the defendant (hereinafter “instant commercial building”) listed in paragraph (1) in the name of the defendant (hereinafter “attached Form”) (hereinafter “the instant commercial building”), (2) stocks and deposits deposited in each account of KIKO Securities and future deposit securities (hereinafter “the instant financial property”), and (3) [Attachment] real estate listed in paragraph (2) (hereinafter “the instant dry field”).

G. On July 10, 2009, the claimant asserted that the other party concealed the instant commercial buildings, financial assets, dry field, etc. at the transfer site, and filed a claim for the principal trial on the division of property. After that, the other party filed a claim for the division of property through a counter-adjudication, while the retirement allowance to be received immediately by the claimant and the officetels under the name of his/her father should be added to the property division subject to the instant division.

2. Main Safety Determination

A. Summary of the parties' assertion

As long as the other party becomes aware of the concealment of the property in the process of registering the property of a public official, the claimant filed a claim for the division of property by filing a judgment with respect to the concealed property, and the other party filed a claim for the division of property by asserting that the division of property should be completed in the previous lawsuit. As such, the conciliation on the division of property was concluded in the previous lawsuit, and thus, the agreement on the division of property was reached. If the division of property is completed, the claimant’s property under the name of the claimant who did not have been tried in

B. Determination

On the other hand, in a case where an additional property is found after a trial on whether the property is divided or not in a trial on division of property becomes final and conclusive, an additional claim for division of property may be filed against it (see Supreme Court Decision 2000Meu582, Feb. 28, 2003). Likewise, even if an agreement on division of property has been reached, if an additional property is discovered other than the property subject to division of property, it may also be subject to the claim for division of property.

However, in cases where a court decision was made prior to the division of property but the settlement was completed early by agreement between the parties while the deliberation was not conducted voluntarily or voluntarily, if it is interpreted as the property that was not examined in the past trial and all of the additionally discovered property, there might be concerns that the purport of the mediation system that adds the provisions of the negative lawsuit to the early stage of the dispute would be delayed. On the other hand, even if the property is found later, if it is interpreted impossible to perform the additional claim for division of property pursuant to the above mediation provision, it would be abused by the parties intending to conceal the common property. Thus, if the parties agreed not to claim for the division of property, etc. in the previous trial as in this case, it would be reasonable to limit the interpretation of the above agreement to waive the right to claim the division of property, not to interpret the language and text as it is, but only the property that could have been predicted at the time of the agreement to be subject to the division of property. In other words, it would not affect the above agreement with respect to the other party's property that could not have been predicted.

In this case, according to the records of this case, the claimant or the other party agreed not to file a monetary claim, such as division of property, under any pretext in the prior suit. However, the claimant can only recognize the existence of additional property under the name of the other party who was not aware of at the time of the contract as above through the public official's property registration procedure. According to the above facts, the claim for division of property in this case should be allowed, since it is not deemed that at least there was a waiver of the right to claim division of property with respect to the property additionally discovered after the prior suit, and it is reasonable to determine whether the property is predicted to be subject to division of property in the prior suit (see, e.g., Supreme Court Decision 200Da3288, Apr. 2, 201).

C. Sub-committee

Therefore, the other party's defense to the effect that the claim for division of property of this case is not permissible is not justified.

3. Judgment on the merits

(a) The object of division of property and the principle of computing the value thereof;

If a party, who has been divorced, seeks a division of the property created by the cooperation of both parties during marriage, the division of the property shall, in principle, be calculated based on the time when the marriage relationship between the parties terminates. In this case, based on April 30, 2008, the date when the conciliation of divorce lawsuit between the claimant and the other party is completed, the property division subject to division and its value should be calculated.

B. According to the above facts, the commercial buildings, financial assets, and dry field of this case were not examined at all at all at all at all at all at all at all, and discovered after the result of the previous lawsuit was finalized. In addition, in light of the time of acquisition and amount of acquisition of each property, it is reasonable to view that each of them is subject to division of property as the common property acquired during the marriage period (in the case of financial assets, it may have been discovered if the fact-finding might have been closely analyzed without being omitted at all financial institutions, but in ordinary cases, it is unreasonable to demand such measures to be taken).

Examining the property division standard value of each of the above property, as to the commercial buildings of this case, since the market price appraisal was not made, the officially assessed individual land price of 2008 nearest from the date of completion of the conciliation of divorce as shown in the records of this case (1. 208).

1. 263, 674, 925 won [ = 236, 474, 700 won = 259 square meters = 3,300,00 won per 1m of the average officially assessed land price as of January 1, 2008 + 27,200, 225 won when calculating the value based on the current base value, etc. of the building and the current base value of the building] 263, 674, 925 won [3, 700 won per 1m of the average land price as of January 1, 2008] + 27,200, and 225 won for the dry field of this case, as long as the market value was not appraised, the amount equivalent to 125,00,000 won as at the time the other party acquired, and as to the financial property of this case, the balance of deposit at the time of divorce adjustment is the value, according to the records.

The other party asserts that the dry field and the commercial building of this case should be assessed in accordance with the officially assessed individual land price, not the purchase price of the other party, and that the dry field of this case and the commercial building of this case should be assessed in the same way as the commercial building of this case, so long as the market price has not been assessed as to all the property subject to division of property. Thus, the same method of evaluation should not be used in recognizing the value of the property subject to division of property, but it should be used in comprehensive consideration of evidence and overall purport of examination submitted by the parties for each property. Even if there are special circumstances where it is difficult to recognize the value of each property by the specific method such as the virtual public notice price, if it is difficult to recognize it as it is in light of all the circumstances, it can be modified by such special circumstances. According to the records, according to the individual officially assessed land price of January 1, 207, the value of the dry field of this case should be determined as 12,228,000 won = (24,000 won x512,000 won,00 won.

(B) As to this, the other party’s dry field and financial assets of this case were prepared as retirement payment received by the other party in August 2007, when they were married, at the time of voluntary retirement from the Medical Center of Bright University. Since retirement allowances of the other party can have been already examined or deliberated during the pre-trial trial, it cannot be subject to division of property of this case. However, the evidence presented by the other party alone is insufficient to conclude that each of the above assets was provided as retirement allowance, etc., and therefore, the above assertion is without merit.

Furthermore, the other party asserts that the other party should calculate the other party's wage account at the time of the conciliation in a prior suit as a joint liability. However, it cannot be said that the other party's property could not be predicted at the time of the prior suit or that newly discovered property, and thus, it cannot be accepted.

(C) Sub-decisions: All of the instant commercial buildings and financial assets in the name of the other party are recognized as subject to division of property.

(2) On December 31, 2010, the other party claimed that the retirement allowance to be received by the claimant is scheduled to be received by the claimant first, and that the retirement allowance to be received by the claimant is to be included in the subject of division of property since the retirement allowance to be received by the claimant was finalized at KRW 259, 816,200, and that it should be included in the subject of division of property. Thus, it is reasonable to view that the retirement allowance to be received by the claimant at the time of the completion of mediation on April 30, 2008 was not determined as the retirement allowance to be received by the claimant in the future. However, even if so, it is possible to determine the amount and method of division by taking this into account at the time (Supreme Court Decision 197Da3388, Mar. 3, 199

14. According to the above 96Meu1533, 1540, 1540, the other party at the time of the conciliation in a prior suit agreed to the effect that the claimant would not file a claim for the division of property in the future even though he was well aware that he would receive retirement benefits after two to three years. Thus, the other party's assertion as to this part is without merit. (b) The other party's assertion as to this part is without merit. Then, the other party's argument as to officetels 00, 966 - 1 and 2 00, Incheon, Nam-gu, Incheon, and 966 - 1 and 2 00, the other party argued that the above officetels should be included in the property division because it is the property of the claimant's title trust. However, it is difficult to acknowledge this part of the evidence presented in the records of this case.

(C) The theory of lawsuit: No property which is deemed to be subject to division of property among the property in the name of the claimant.

C. The ratio of division of property shall be 50% of the claimant and 50% of the other party, taking into account the following circumstances: (a) all supporting materials submitted by the claimant and the other party; and (b) the formation process of each co-owned property recognized by the overall purport of examination; (c) the degree of contribution to the formation and maintenance of property of the claimant and the other party; and (d) the age and period of marriage

(d) Method and amount of division of property;

Each of the above property, which is the subject of division of property, shall belong to the other party as at present, and it is reasonable to determine that the other party pays in cash the amount to be reverted to the claimant according to the division of property

Therefore, the other party is obligated to pay to the claimant 195, 189, 531 won [ = 265, 379, 062 won = 263, 674, 925 + 125, 000, 000 won + 1, 704, 137 won] x 0.5% per annum from the day after the judgment becomes final to the day of complete payment.

4. Conclusion

Thus, the claimant's claim for division of property shall be determined as above, and the other party's claim for division of property is dismissed as it is without merit. It is so decided as per Disposition.

September 17, 2010

The presiding judge shall give notice to judges

Judges Kim Jong-Hy

Judge Lee fixed-term

A person shall be appointed.