2019dward20473 (principal office) Divorce

2019ddan208515 (Counterclaim) Litigation for a claim for payment of child support

A

April 8, 2020

May 6, 2020

1. The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) are divorced.

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 10 million won with child support in the past and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The defendant (Counterclaim plaintiff)'s remaining counterclaim is dismissed.

4. The costs of lawsuit shall be borne by each person;

Listening to the Cheongpy (the main office)

The text of paragraph (1) is as follows.

[Counterclaim] The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) pays to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) 16,100,000 won as child support in the past and 12% per annum from the day following the day of delivery of a copy of the instant counterclaim to the day of full payment.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who reported their marriage on 1977, and they have adult children under the chain.

B. Around 1988, while running the Plaintiff’s business, the Plaintiff began to be separated from the Defendant while making a defaulted creditor living for the escape of damage.

C. The plaintiff had been sick since 1988, and the defendant was found in Byung's house to find the plaintiff.

D. The plaintiff and the defendant were living separately from around 1988 to the present. The plaintiff is living together with the present.

E. The Defendant brought up the child to the time when the child became adult after his stay, and the Plaintiff did not pay the child support to the Defendant at all.

[Ground of recognition] Evidence Nos. 1 through 5 (including paper numbers), Evidence Nos. 1 and 2, family investigation report, the purport of the whole pleadings

2. Determination as to the claim for divorce

A. In principle, a spouse who is mainly responsible for the failure of the marital life may not file a claim for divorce on the ground of the failure: Provided, That the other spouse may exceptionally allow a claim for divorce by a liable spouse where there are special circumstances that do not remain enough to reject the claim for divorce, such as in a case where the other spouse has no intention to continue the marriage and there is no concern about divorce or divorce by one’s will. Furthermore, the spouse’s protection and consideration for the other spouse and children has been taken place to offset the responsibilities of the spouse claiming the divorce, or where the liability of the responsible spouse for the spouse and the mental suffering suffered by the other spouse has been significantly weakened as at the time of the dissolution of the marriage due to the lapse of the third month, and where there is any special circumstance that does not exist enough to reject the claim for divorce.

As can be determined on an exceptional basis, the following should be taken into account: (a) the degree of liability of the responsible spouse; (b) the other spouse’s assessment of the other spouse’s intention and the responsible spouse; (c) the party’s age; (d) the period of marital life and the specific living relationship after marriage; (e) the period of separate life; (d) the living relationship formed after the marriage between the married couple; (e) whether there are various circumstances after the failure of the married life; (e) the other spouse’s psychological, social, economic, and economic conditions where divorce is recognized; (e) the degree of the other spouse’s psychological, economic, and living security; (e) the situation of rearing, education, and welfare of minor children; and (e) other circumstances of marriage (see Supreme Court en banc Decision

B. According to the above facts, the marriage between the plaintiff and the defendant has reached a failure to the extent that it is impossible to recover, which constitutes "when there is a serious reason to make it difficult to continue the marriage" as stipulated in Article 840 subparagraph 6 of the Civil Code, and the principal responsibility of the married coal is judged to be the plaintiff. The spouse who is mainly responsible for the failure of the marital life is not entitled to file a divorce in principle on the grounds of the failure, but is able to file a divorce in full view of the following circumstances, which can be known by the legal principles as well as the evidence as mentioned above and the purport of the entire pleadings, it shall be determined that the plaintiff's liability for the failure of the marital life in this case is not

Therefore, the plaintiff's claim for divorce is reasonable.

1) The Plaintiff and the Defendant were married for about 11 years from around 1977 to around 198. However, from around that time, they were living for about 32 years up to that time, and did not make any specific contact among them. As a separate life continues for a long time, the substance of marriage was completely resolved and their independent living relationship between the Plaintiff and the Defendant came to a certain phase.

2) Although the Defendant expressed his/her intention not to consent to divorce, he/she was living well in the family investigation process while living together with the Defendant. However, there was no problem whether or not having been divorced or not, but he/she could not understand the demand of divorce, and he/she would have died in his/her life according to his/her match. Considering the above statement, it is doubtful whether the Defendant expressed his/her intention to maintain the marital relationship with the Plaintiff, and there is room to view that the Defendant’s intention not to divorce is able to keep the legal relationship only with the Plaintiff on the sole basis of the fact that the substance of marriage is lost, while the Defendant’s intention not to divorce is still acceptable.

3) The Defendant knew that the Plaintiff and his family members were in contact with the Plaintiff, and did not find the Defendant any longer, considering that the Plaintiff’s family members were aware of the fact that the Plaintiff’s family members were in contact with the Plaintiff as a houser. The Defendant did not take any particular action to recover the relationship with the Plaintiff even though he knew of the Plaintiff’s contact address around 2004 (the Defendant stated that he was aware of the Plaintiff’s contact address around 2013 in the course of the family survey, but the Plaintiff’s contact was made by the Plaintiff and the Defendant’s child’s call around July 2004. Thus, it is reasonable to view that the Defendant also knew the Plaintiff’s contact address around that time. Even if the time when the Plaintiff’s contact address was known as the Defendant’s statement was 2013 years, it is the same as the Defendant did not take any particular measures to recover the relationship thereafter).

4) All children have become adult and married. Considering the age, situation, etc. of the Plaintiff and the Defendant and their children, it is difficult to deem that the divorce is expected that a significant change in the Defendant’s social and economic condition and living conditions is expected or that special protection and consideration is needed.

3. Determination as to a claim for counterclaim

According to the above facts, the Plaintiff is obligated to share the past child support for children as his father. In full view of the following facts: (a) the age and status of children at the time of separate residence; (b) the circumstance and period of the Defendant’s care for children neglected; and (c) the Plaintiff’s awareness of such fact; and (d) the Plaintiff’s burden of the Defendant’s full amount of the past child support to the other party at once may be contrary to the good faith or the principle of equity. The Plaintiff’s child support

4. Conclusion

The plaintiff's claim of the principal lawsuit is accepted, and part of the defendant's counterclaim is accepted.

Judges Gyeong-dong