Whether the cash equivalent to the same amount may be presumed to exist in a case where one party receives repayment after the separate claim acquired through the cooperation of both spouses was commenced during the marriage life (affirmative)

A claim acquired through the cooperation of the husband and wife during the marriage life shall be subject to division of property, and if one of the husband and wife has received the repayment of the claim after the separation has commenced, the cash equivalent to the same amount shall be presumed to exist unless there is any positive proof as to the place of use.

Article 839-2 of the Civil Act

[Defendant-Appellee] Plaintiff (Attorney Im Jae-soo, Counsel for defendant-appellee)

Defendant (Attorney Han-soo, Counsel for defendant-appellant)

1. The plaintiff and the defendant are divorced.

2. The defendant shall pay to the plaintiff the amount equivalent to 30 million won as division of property and the amount equivalent to 5 percent per annum from the day this judgment became final to the day of complete payment.

3. The defendant shall be designated as the exerciseer of parental authority over the principals of the case and the guardian.

4. The plaintiff's remaining claims are dismissed.

5. Two minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

The judgment of the court below and the defendant, like paragraphs (1) and (3) of this Article, shall pay to the plaintiff 30 million won as consolation money, 50 million won as division of property, and 25 percent per annum from the day of this decision to the day of complete payment.

1. Determination on the claim for divorce and consolation money

A. The plaintiff's assertion

Around 1979, the Defendant had committed verbal violence and sexual violence against the Plaintiff. From around 1990 to around 199, the Defendant had been living together with the Plaintiff. However, from around 1990, the Defendant abused the Plaintiff’s body that she was living together with her both desire. In addition, from around 1994, the Plaintiff demanded her sexual act and had the Plaintiff receive treatment by causing the Plaintiff to have a severe pain on a negative part, and had the Plaintiff receive treatment for her child. In addition, from around 1996, the Defendant had an internal relationship with the Nonparty 1, who performed funeral in the vicinity of the Korea-U.S. Port of Jeju, Jeju., the Defendant’s failure due to a cause attributable to the Defendant’s responsibility. Accordingly, the Plaintiff asserts that the Plaintiff seeking divorce with the Defendant. Moreover, the Defendant’s aforementioned act clearly proves that the Plaintiff suffered emotional distress due to the failure of her marital life, and thus, the Plaintiff sought compensation for solatium of KRW 30 million.

B. Facts of recognition

In full view of the descriptions of Gap evidence 1 (No. 1), Gap evidence 2 (Seafarer of the family register), Eul evidence 3 (certificate of the family register), each of the testimony of 1 and 2 of the witnesses (excluding the part rejected after the testimony of the witness 1), and the content of the investigation report of the investigators of this court, the following facts are recognized only in the whole purport of the pleadings. Moreover, there is no evidence to acknowledge the plaintiff's assertion other than the following facts, other than the testimony of the witness 1 and 3, which is not trusted by this court:

(1) The Plaintiff and the Defendant came to know at the end of spring 1979. The Plaintiff and the Defendant came to know of her Matrimonial engagement and living together, and gave birth to the principal of the case on May 8, 1980. The Plaintiff and the Defendant reported their marriage on January 27, 1981. In addition, the instant principal 2 was made on May 23, 1982, and the instant principal 3 was made on May 9, 1985. The Plaintiff and the Defendant got married around May 5, 1987.

(2) From around 190, after the birth of both the Defendant’s birth, both the Plaintiff and the Defendant were married, and the Defendant began to live in the economic life. However, when there was marital fighting, the Defendant started to live in the Plaintiff. From around August 1994, the Defendant requested the Plaintiff to engage in an alternative sexual act, but there was no big problem among the two. Of these, the Defendant disposed of a small-sized fishing vessel building and a large-scale fishing net (fishing vessel omitted) owned on August 1995, and purchased a large-scale fishing vessel (fishing vessel name omitted) (32t). The Defendant got out of the said (fishing vessel name omitted) and came to live in the sea for more than 20 days a month. However, the Plaintiff, who was going on the sea by the Defendant, did so in the sea between the Plaintiff and the crew.

(3) Around February 1996, the Defendant got to know how the Defendant managed the money more than once to the Plaintiff. The Plaintiff left the house with only keeping the account books. The Defendant’s examination of the account books and came to know that the degree of KRW 27,00,000 was disturbed. The Defendant attempted to pursue the whereabouts of the Plaintiff who entered the house, and engage in verbal abuse and assault. Around June 1996, the Defendant had tried to again calculate the money more than once, and had the Plaintiff opened the account books. The Plaintiff could not have known the whereabouts of KRW 47,00,00. The Defendant’s examination of the account books, and the Plaintiff was also able to find out the violence of the Plaintiff’s name in the region above. The Plaintiff was also 10,000,000,000 won and 10,000 won and 10,000 won and 10,000 won and 10,000 won and 10,000 won.

(4) Around November 196, the Defendant 196 dices with the crew and dices. At that time, the witness 3, who was the Plaintiff’s dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice dice hume, and dice dice dice dice dice dice dice dice dume, and the Defendant dumed with Nonparty 1, the Plaintiff and the Plaintiff dice 1.

(5) On 197, the Plaintiff’s act of drinking with seafarers continued, and the Plaintiff met and came back to the house and came back to the room. The instant principal 1 and 2 met in Jeju city, and was attending a high school and a middle school. However, even if the Plaintiff was present at Jeju, the Plaintiff was under the influence of drinking rather than drinking, and entered the place where the principal of the instant case resides at late night or at late.

(6) However, on June 22, 1997, the Plaintiff was allowed to attend when the Defendant settled accounts with the crew and drinking alcohol. The Plaintiff, even though the Plaintiff was frightened, was frightened by the Defendant, and frightened to the bar, and frighten was received by all the crew members. The Defendant was frightened. The Defendant frightened the non-party fright couple, the crew, and sent the Plaintiff as the house. However, after the lapse of 2 hours, the Defendant was frightened in the house, and the Plaintiff was frightened from the body, and the Plaintiff was frightened. As such, the Defendant was frightened, and was frightened. As a consequence, the Plaintiff did not frighten the house and did not return to the Plaintiff. The Plaintiff was an employee of the restaurant at Jeju.

(b) Markets:

(1) Whether a divorce is recognized

According to the above facts, the marital relationship between the Plaintiff and the Defendant has come to a failure to recover the normal relationship as a couple no longer due to the loss of difficulties in the marriage between the Plaintiff and the Defendant. However, the fact that such marital relationship has occurred due to the failure of the Defendant to disclose the place of use of money, making verbal abuse and assault against the Plaintiff, and making the above non-party 1 in currency with the Plaintiff, and making the relationship with the Defendant and the above non-party 1 known as above, but the considerable liability for the failure of marriage seems to exist in the Plaintiff. In other words, the Plaintiff’s long-term husband did not look at the family between the Defendant and the Defendant, and the Defendant’s assault and verbal abuse did not go back to the Plaintiff, and it is obvious that the Plaintiff did not appear to have been 9 years since the Plaintiff did not know the place of use of money while managing the Defendant’s revenue, and it is evident that the Defendant did not have any more objective reason to get a divorce between the Plaintiff and the Defendant 1 and the above non-party 1 until 17 days after his arrival.

(2) Whether to recognize consolation money

However, as seen earlier, the claim for consolation money shall not be accepted in light of the fact that the reason for the cause of the failure of a matrimonial relationship between the Plaintiff and the Defendant is greater than the Defendant.

2. Determination on the claim for division of property

A. Facts of recognition

The following facts may be acknowledged by comprehensively considering the following facts as to Gap evidence 1 to 3 and Gap evidence 4 to 8 (each written confirmation), Gap evidence 10 (each copy of land register), Gap evidence 11 (individually notified land price confirmation), and witness 1, 3, and 2's testimony (excluding each part rejected after the witness 3 and 1's testimony) and the results of the fact inquiry as to the chief of this court's memorial fisheries association, and the whole purport of the pleadings. Any witness 3 and 1's testimony against them are not believed, and there is no counter-proof otherwise.

(1) Around 1979, the Plaintiff and his parents and the Defendant’s dynamics (one male dong and three female son) together with the Defendant around 1979. Nonparty 2, the father of the Defendant, owned a lock (8t) and lock (2.5t), forest land and one house, and one house and one house before lock (2.5t). The Plaintiff, the father of the Defendant, purchased 1,000 square meters prior to lock and one lot of forest land under the name of the Defendant, where lock were developed.

(2) However, the above non-party 2 died from around January 17, 1983 to Scouram, and became liable for a large amount of hospital expenses, etc. Accordingly, the defendant's family members sold the housing at the time and performed an unauthorized collection of the amount equivalent to 1,50,000 won remaining after the disposal of the housing at the time and the repayment of the debt. The defendant's family members extended the total amount of five square meters by taking into account KRW 1,80,000, around 1992.

(3) The Plaintiff had been married with the Defendant and engaged in a female life. After the death of Nonparty 2, the Plaintiff left a small-sized fishing vessel like her other woman, and went to the sea like the Defendant for six months, as well as the Defendant. The Plaintiff and the Defendant sent the Defendant’s female students until 190.

(4) Around August 1983, the Defendant purchased a sexual signal with mutual aid from the sinking of the said lock. The Defendant disposed of the said sexual signal and purchased the said lock, and purchased the 2,000,000 won, which was in possession of the Plaintiff. Around 1993, the Defendant disposed of the said lock and purchased the said lock (8.93t) and then purchased the said lock (the said lock omitted) for 130,000,000 won.

(5) The defendant's property status is as follows.

(A) The above (fishing vessel name omitted) is registered in the name of the defendant, and the current market price is KRW 100,000. The current market price is KRW 15,00,000. The above (fishing vessel name omitted) is 15,000,000,000. On the other hand, the market price is KRW 10,000,000. On the other hand, on the other hand, prior to the above (i.e., the market price is KRW 10,000. On the other hand, on the other hand, the land price is KRW 259,000,000 under the other person’s name, but the real estate price is 5,361,300,000,000, which is substantially controlled by the defendant. The market price is 10,000,000,000 + KRW 140,361,300,000,000.

(B) The defendant has a claim for advance payment of KRW 13,00,000 to the non-party Kim Jong-sik who is the crew of the defendant. The defendant extended KRW 17,600,000 to the non-party Kim Jong-sik who is the crew of the defendant but was paid KRW 17,600,000 to the non-party Kim Jong-young around December 4, 1996. The defendant was also granted KRW 17,60,000 to the non-party Kim Jong-young around July 28, 1997. The defendant also granted KRW 9,00,000 to the non-party Ko Jong-sik from January 1, 1997 to July 7, 199, + KRW 65,00,000 + KRW 10,0000,0000 + KRW 65,000,0000,000 + KRW 300,000.

(C) The Defendant obtained a loan of English funds, facility funds, etc. from the Dogdo Fisheries Cooperatives, and currently has the obligation of KRW 61,713,000. The Defendant also borrowed KRW 20,000,000 from the non-party's relative to the non-party's relative due to purchase price or repair cost, fishing expenses, etc. (fishing vessel name omitted) and KRW 5,000,000,000 each from the non-party's relative to the non-party's relative, namely, the non-party's 5,00,000,000,000,000 won for the non-party's 127,321,80,000 won for the purchase price of machinery parts, etc. (fishing vessel name omitted) + KRW 29,608,800 for the above (fishing vessel name omitted) + KRW 20,00,005,000 + KRW 208,20080.

(6) Under the Plaintiff’s name, a creditor also has the obligation to lend KRW 10,000,000 to the Fisheries Cooperatives. The loan was used for the loan cost, etc.

(b) Markets:

(1) The object of division

According to the above facts, the above (fishing vessel name omitted) and its fishing gear and above real estate are owned by the defendant or have the right to dispose of them in their appearance, but the formation and maintenance of their property contributed to the defendant's continuous fishing operations, the plaintiff's partial sea life, fishing operations, and family labor directly and indirectly, and are subject to division of property (it cannot be concluded that the plaintiff did not contribute to the formation and maintenance of property by drinking, etc. such as the above recognition).

In addition, since the above recognition claims have been acquired through cooperation between the plaintiff and the defendant, they are subject to division of property. In addition, around July 28, 1997, KRW 17,600,000 paid to the above Kim Young-hwan and KRW 10,00,000 paid to the above Go Young-dong on or around October 1997, since the above recognition was paid after June 22, 1997 when a separate withdrawal between the plaintiff and the defendant began, it is presumed that the cash equivalent to the same amount has existed unless there is a positive proof as to the place of use. Accordingly, this is also subject to division of property.

In addition, the debt is also subject to liquidation, and the debt of the defendant and the plaintiff are also disbursed to purchase the ship and use it in fishing expenses, etc. for fishing operation, which is the main means of living of the plaintiff and the defendant, so it is subject to liquidation.

(2) Method and degree of division

In the case of dividing the above vessels, real estate, and claims in kind, the procedure is diversified, and it is not reasonable in light of the form of the use of property and the current status of the use thereof. Therefore, it is necessary to maintain this in the present state and maintain it and ultimately vest it in the Defendant’s ownership (a debt of KRW 10,000,000 to the Plaintiff) and to evaluate and settle them in cash.

Furthermore, considering the period of marriage of the Plaintiff and the Defendant during the pleadings in the instant case, grounds for divorce, age and property status of the parties, degree of mutual cooperation among the parties to the formation of property during marriage, degree of mutual aid after divorce, and other circumstances, the degree of contribution to the formation of the Plaintiff’s property shall be 30%. Accordingly, the amount of property division to be paid by the Defendant to the Plaintiff shall be 30% of the assessed value of the Defendant’s vessel, real estate, and bonds (140,361,300 + 65,600,600 + 127,321,800) and 70% of the Plaintiff’s debt amount (10,000,000 won) under the basis of 30,000 won.

Therefore, the defendant is obligated to pay to the plaintiff the damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the above recognition as division of property becomes final and conclusive to the day when the due date reaches the due date due to the confirmation of the obligation to pay the above amount. (The plaintiff claimed damages for delay at the rate of 25% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from the day of the judgment to the day when the due date is fully paid, but the due date comes only after this judgment becomes final and conclusive. Therefore, the above special Act cannot be applied as it constitutes a future performance claim as long as the due date comes due, the plaintiff's assertion exceeding

3. Judgment on the disposition of fostering

In light of the circumstances, such as the age, gender, living situation of the principal of the case and the degree of the consciousness of the plaintiff and the defendant, which were acknowledged above, the circumstance of marriage and the marriage dissolution of the plaintiff and the defendant, it is more reasonable to have the defendant exercise parental authority over the principal of the case and raise the defendant rather than the plaintiff for the smooth growth and welfare of the plaintiff. Accordingly, the defendant shall be designated as the creditor and custodian of the principal of the case.

4. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Kim Yong-ho (Presiding Judge) Name of Gangwon-won