2014Dhap 10297 (principal lawsuit), divorce, consolation money, etc.

2014Dhap10341 (Counterclaim) Action for a divorce

A

B

C

August 27, 2015

September 10, 2015

1. In accordance with the principal lawsuit, the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) B are divorced.

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 15,00,000 won as consolation money and 5% per annum from August 8, 2014 to September 10, 2015, and 20% per annum from the next day to the day of full payment.

3. The Plaintiff (Counterclaim Defendant)’s remaining principal claim against the Defendant (Counterclaim Plaintiff) and Defendant C’s claim against the Defendant, and the Defendant (Counterclaim Plaintiff)’s counterclaim claim against the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff). The remainder is assessed against the Plaintiff (Counterclaim Defendant) and the remainder is assessed against the Plaintiff (Counterclaim Defendant) and the part arising between the Plaintiff (Counterclaim Defendant) and the Defendant C.

5. Paragraph 2 can be provisionally executed.

1. Main elements;

The main text of Paragraph (1) and the defendants pay to the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") 50,000,000 won with 20% interest per annum from the day after the copy of the main text of this case is served to the day of complete payment. The defendant (Counterclaim plaintiff) B (hereinafter referred to as "Defendant B") shall pay to the plaintiff 42,25,400 won with 42% interest per annum from the day after the copy of the main text of this case is served to the day of full payment.

2. Counterclaim;

The Plaintiff and Defendant B are divorced.

1. Facts of recognition;

A. Marriage Report and Child, and Relationship between Parties

1) The Plaintiff and Defendant B reported their marriage on October 7, 2013, and there is no child between them. 2) Defendant C is the father of Defendant B.

(b) Circumstances of the marriage and the failure;

1) On October 30, 2012, the Plaintiff first became aware of Defendant B, who was residing in China at the time of introduction by the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch

2) On September 29, 2013, the Plaintiff and Defendant B launched a new marriage life in China on October 13, 2013 after they completed the marriage report on October 7, 2013.

3) Unlike Defendant B’s promise prior to marriage, the Plaintiff was dissatisfied with the Plaintiff on the premise that he was able to take exclusive charge of household affairs and enjoy only one’s leisure activities while making the Plaintiff in a fluent manner, without giving the Plaintiff a proper living cost. The Defendant B also has been dissatisfied with the idea that the Plaintiff neglected his home during the marriage period and was negligent in making efforts to adapt to Chinese life, thereby evading a proper dialogue on marital issues. The Plaintiff and Defendant B resolved on the grounds of the complaints, etc. against the said mutual relationship.

4) Meanwhile, Defendant B sent a paper contact with the Plaintiff or entered entertainment establishments during the period of her marriage with the Plaintiff. On July 2013, 2013, Defendant B, with the Plaintiff and other women, did an act, such as promising them to enter and arrange to enter entertainment establishments to be operated in China. On September 2013, 2013, Defendant B sent a straw with women living in Jeju-do at the same time after entering Korea as 1st day and going through a string and going through a string. Defendant B did not want to disclose “I want to report, I would like to do so, I would like to do so, I would like to know that I would like to do so, I would see that I would see that I would see that I would see that I would see that I would like to do so, I would see that I would see that I would like to do so at the time before and after her marriage.”

5) 원고와 피고 B는 설 명절을 맞아 2014. 1. 27. 한국에 들어와 시댁을 방문하였는데, 시댁에서 경제적인 문제를 비롯한 여러 가지 이유로 서로 다투었고, 이 일로 인하여 원고가 친정에 가기도 하였다.

6) On February 3, 2014, the Plaintiff came to know of pregnancy with her father and her mother, and thereafter Defendant B was among the Defendants.

The plaintiff left Korea as a country and was residing in kind for one year on the basis of the pre-entry, etc., and the plaintiff was diagnosed from the mountain father on March 5, 2014.

7) On April 9, 2014, Defendant B departed from China along with the Plaintiff on April 24, 2014. During that process, the Plaintiff raised a complaint on the premise that the Plaintiff, who was the Plaintiff’s miscarriage, was seriously against the Plaintiff that he excessively paid the relevant nursing expenses and hospital expenses. The Defendant B also tried to talk with the Plaintiff on the living expenses and hospital expenses, etc., not against the Plaintiff’s parents, but against the Plaintiff’s parents, but the Plaintiff was unable to communicate with the Plaintiff because it did not go against it. The Plaintiff and Defendant B raised a complaint on the following grounds: (a) the Plaintiff brought the Plaintiff to China along with the foregoing issues; and (b) the Plaintiff was talking about the Plaintiff, including the amount of the Plaintiff’s suffering from China; and (c) the payment of hospital expenses-related insurance proceeds.

8) Even after they returned to China again, the Plaintiff and Defendant B continued to simplified for various reasons, such as complaints against each other as seen earlier. During that period, the Plaintiff had been at the end of May 2, 2014, and there was a possibility that she would have been at the end of her time? There was a possibility that she would have been at the end of one month? (b) the Plaintiff would have been forced to enter into a happy marriage? At the same time, it is inevitable to look at only when it is necessary. The Plaintiff would want to live in the match. The Plaintiff would have been forced to make an effort to divorce, but would not have been forced to make a solution to the Plaintiff, such as the first time of divorce (the first time of divorce, but the Plaintiff would not have been forced to deliver it to the Plaintiff).

9) Since then, the Plaintiff issued to Defendant B a letter containing the content that “I would bring about an individual’s time, so I would like to prepare for an airline ticket to Korea,” and Defendant B prepared an airline ticket, but the Plaintiff did not enter Korea on the premise that Defendant B requested a continuous divorce and attempted to send the Plaintiff completely to Korea.

10) In the above circumstances, Defendant B entered Korea on May 29, 2014, and the Plaintiff came to know of the fact that Defendant B, as described in the foregoing paragraph (4) through Defendant B’s preliminary mobile phone before and after left China, had engaged in any act, such as exchanging and frequently communicating with several womens during the marriage period. The Plaintiff around that time, asked Defendant C about whether “Defendant B was forced to drive away from his house.” It is different whether there was a mental and physical winding fact. Defendant C sent a text message, such as “The Plaintiff is conducting research to see, or divorced and divorce the game by viewing the video image that the Defendant C was not known as a quasi-computer computer.” In addition, Defendant B searched the site of Defendant B from the adult computer located in Defendant B’s bank, the content of searching the site, goods for camping, materials related to Defendant C’s mobile phone, etc., and transmitted it to Defendant C’s mobile phone.

11) Defendant B returned to China on June 2014. Defendant B became aware of the fact that the Plaintiff, not in China, arbitrarily confirmed the details stored in Defendant B’s corporate office and brought about the mobile phone used in Defendant B’s company phone and Defendant B’s pre-service business, and the conflict between the two for various reasons, including this issue, including Defendant B’s entertainment life and women’s problems. In that process, Defendant B demanded the Plaintiff to return his own goods and demanded the Plaintiff to return his goods to Korea, and had the Plaintiff returned to China, and the Plaintiff sought the airline right to return to China again. Defendant C also talked to the purport that the police will be dismissed if he acted in that manner with his arbitrary act by using the company’s computer.

12) On June 8, 2014, the Plaintiff sent text messages to Defendant C to the effect that “I will go to Korea before Defendant C enters the Republic of Korea. I sent text messages to the Plaintiff on June 9, 2014, and Defendant C responded to the purport that “I will go to Korea before I go to China, and will be able to get I to go to know any longer.” On June 10, 2014, the Plaintiff sent text messages to Defendant C that “I will go to go to Korea, if I go to go to Korea, I would go to go to you? I would go to go to go to you?? I would go to go to go to you? I would go to go to go to you?? I would go to go to go to our country? I would go to go to our country? I would go to go to the other people on the two day. I would not want to report that I would go to go to the brokerage.”

13) The Plaintiff entered Korea on June 10, 2014, and around that time, Defendant B also reported the withdrawal of the Plaintiff to Korea and to the police station on June 19, 2014. Thereafter, Defendant B requested a divorce through content-certified mail on June 30, 2014, and expressed an intention to file a claim for judicial divorce in the event that the agreement is not reached.

14) Meanwhile, Defendant B was provided with non-specific catology, chronic renal failure, and urology at the clinic of urology on January 1, 2014, February 2014, and April 2014. The period of separation between the Plaintiff and Defendant B is currently under way from June 10, 2014 to the date.

D. At present, both the Plaintiff and the Defendant B did not make any effort to recover their relationship, seeking divorce.

[Ground of recognition] Gap evidence 1 through 17, 20 through 36 (including various numbers; hereinafter the same shall apply), Eul evidence 1 through 4, 6 through 14, 18, 20 through 22, and part of Gap evidence 19, this court

Results of fact inquiry reply to the National Health Insurance Corporation, investigation report by family investigator, purport of whole pleadings.

2. Determination as to the claim of divorce and consolation money

(a) Divorce: there are reasons under subparagraphs 1 and 6 of Article 840 of the Civil Act.

As seen earlier, Defendant B’s act of having access to entertainment establishments during the marriage period, sending time to women with time and sending text messages with many women at any time, etc., constitutes an unlawful act that is not faithful to the duty of good faith between husband and wife. Moreover, in full view of the following: (a) the Plaintiff and Defendant B wishing to divorce by both the principal lawsuit and counterclaim, and (b) the conflict between the Plaintiff and the Defendant and the Defendant is likely to worsen to the degree that the marriage relationship becomes worse and that the marriage relationship between the Plaintiff and the Defendant would become worse, it can be recognized that the marriage relationship between the Plaintiff and the Defendant did not occur.

Furthermore, as seen above, the conflict between the plaintiff and the defendant B is partly responsible for the plaintiff who was unable to resolve the conflict that occurred between the plaintiff and the defendant through difficulties and understanding of the other party. However, even though the conflict between the plaintiff and the defendant B has been deepened due to the defendant B's improper act, it seems that the plaintiff was seriously ill or even without making efforts to recover the relationship, and thus, the defendant B who made the conflict more advanced by demanding a divorce. Thus, the main responsibility for the failure of the marriage is judged to be against the defendant B.

As to this, the Plaintiff asserts to the effect that, on the ground that Defendant B’s spouse, who is the reason for divorce under Article 840 subparag. 2 and 3 of the Civil Act, abandons the Plaintiff and forced the Plaintiff to make a divorce in collusion with Defendant C while neglecting the Plaintiff, while taking advantage of the Plaintiff’s leisure activity only and without paying the Plaintiff’s living expenses, the Plaintiff is subject to extremely unfair treatment by his spouse or his lineal ascendants. However, the aforementioned factual basis and evidence presented by the Plaintiff alone are insufficient to acknowledge that the Plaintiff was extremely maltreated by assault, abuse, or serious insult, to the extent that it might have been considered that the Plaintiff’s continued marital relationship from the Defendants. Accordingly, the Plaintiff’s assertion is not acceptable as otherwise alleged by the Plaintiff.

B. Determination as to the claim of consolation money against Defendant B

Considering the circumstances such as the period of marriage of the Plaintiff and the Defendant B, the cause of the failure of marriage and the degree of responsibility, age, occupation, and economic power, it is reasonable to determine consolation money to be paid to the Plaintiff by the Defendant B as KRW 15,00,000.

Therefore, Defendant B is obligated to pay to the Plaintiff the consolation money of KRW 15,00,000 as well as damages for delay calculated at each rate of 20% per annum under the Civil Act from August 8, 2014 to September 10, 2015, which is the day following the delivery date of the duplicate of the main complaint of this case, where it is deemed reasonable for Defendant B to dispute as to the existence of the obligation or the scope of the obligation.

C. Determination as to the claim of consolation money against Defendant C

As seen in the above Section 2-A, the Plaintiff asserts to the effect that Defendant C is liable to pay consolation money to the Plaintiff on the grounds that Defendant C conspired with Defendant B to threaten the Plaintiff, forced the divorce, etc., and caused the failure of the marriage between the Plaintiff and Defendant B to drive away in Korea.

However, in light of all the circumstances such as the Plaintiff and Defendant C’s overall dialogue between the Plaintiff and Defendant C, the process and process where Defendant C made the above talk, and the relationship between the Plaintiff and the Defendants at the time, it is difficult to recognize that Defendant C is responsible for the failure of the marriage between the Plaintiff and the Defendant, and there is no other evidence to acknowledge this differently. Accordingly, the Plaintiff’s claim for consolation money against Defendant C is not acceptable.

3. Judgment on a counterclaim

피고 B는, 원고가 혼인기간 동안 가사를 소홀히 한 채 중국생활에 적응하기 위한 노력을 게을리 한 점, 부부싸움이 발생하면 울어버리거나 짜증을 내며 자리를 피하는 등 정상적인 대화를 불가능하게 만든 점, 시댁에서 부부싸움을 한 뒤 친정으로 가 명절 당일에도 시댁을 방문하지 아니하는 등 이기적이고 미성숙한 행동을 한 점, 수차례 이혼을 요구하다가 번복하고 피고 C에게 이상한 문자메시지를 보내거나 회사 기밀문서를 해킹하고 피고 B의 휴대전화를 가져가 버리는 등 이상행동을 한 점, 늦게 귀가하거나 외박을 하다가 가출하여 연락이 두절된 점, 원고의 모친이 결혼 준비과정에서 피고 B로 하여금 결혼비용을 일방적으로 부담할 것을 강요하고, 피고 B에게 수시로 막말과 무시를 하면서 원고와 피고 B의 부부문제에 지나치게 간섭하여 다툼을 부추긴 점 등을 이유로, 원고에게 민법 제840조 제6호의 이혼사유가 있다고 주장하면서 반소로서 이혼을 청구한다.

In full view of the evidence submitted by Defendant B, it is insufficient to recognize that the marital relationship between the Plaintiff and Defendant B was broken down due to the Plaintiff’s principal mistake, and there is no other evidence to acknowledge this otherwise. Rather, the principal liability of the marital failure as seen earlier lies in Defendant B. Therefore, the claim for a counterclaim divorce by Defendant B is not accepted.

4. Determination as to a claim for damages on property of the principal lawsuit

A. The assertion

The Plaintiff asserts that Defendant B is liable to pay KRW 42,255,400, total of all the expenses incurred by the Plaintiff for the marriage as property damages incurred by the Plaintiff due to the failure of the marriage (i.e., food expenses of KRW 8,197,500 + KRW 5,876,900 for the travel expenses of new marriage + KRW 10,000 for the trial parents’ prefeituration + KRW 10,000 for the purchase expenses of organic set + KRW 532,00 for the purchase expenses of new marriage and non-parent parents + KRW 2,670,000 for the purchase expenses of one set + KRW 1,90 for the purchase expenses of Kimchi and Kimchi and KRW 2,500,000 for the purchase expenses of apartment buildings + KRW 300,000 for the purchase of apartment buildings and Korea + KRW 279,00 for the aviation expenses between China and the Republic of Korea).

B. Determination

As long as the marriage has been established and continued, as long as it is impossible to recognize that the marriage was a meaningful marital life as a marital community, there is no intention to continue the marriage in a short period, or there is no intention to continue the marriage from the beginning, and there is no special reason to treat the marriage as equivalent to the failure to continue the marriage in light of the good faith principle or the principle of equity, either party may not seek against the spouse for the return of expenses paid for the marriage life, such as marriage ceremony, or for the property of wedding, etc. or for compensation for damages equivalent thereto. Furthermore, if an agreement is reached under a valid legal system of the Republic of Korea adopting the principle of legal divorce and the report of marriage is made, and the marriage is constituted, and the marital relationship is formed as a marital community, and the resolution of the marriage relationship is in accordance with the divorce procedure stipulated in the Civil Act. Thus, the substance should not be readily denied to deal with the legal relationship corresponding to failure to marry (see Supreme Court Decision 2014Meu329, 336, 343, Jun. 12, 2014).

In light of such legal principles, as seen earlier, insofar as the Plaintiff and Defendant B maintained a matrimonial relationship for eight months until June 10, 2014, which began to be married and separate on September 29, 2013, and the married couple’s communal life was harmed, it cannot be deemed that their marital relationship cannot be recognized as having been broken down in a short period as long as they did not have a meaningful marital life as the married community, and it is difficult to view that there are special circumstances, such as that Defendant B had no intention to maintain a matrimonial relationship from the beginning, and thus, the Plaintiff’s claim for property damage against Defendant B is rejected.

5. Conclusion

Therefore, the plaintiff's claim for divorce against the defendant B is justified, and the claim for consolation money against the defendant B is accepted within the extent of the above recognition, and the remaining claim for consolation money is dismissed as it is without merit. The plaintiff's claim for consolation money against the defendant B, the plaintiff's claim for damages against the defendant C, and the plaintiff's counterclaim against the defendant B is dismissed as it is without merit. It is so decided as per Disposition.

The names of judges of the presiding judge.

Judges Lee Young-jin

Judges Lee hee-hee