2018dern200637, consolation money, etc. pursuant to de facto marriage resolution

A

The litigants of the Deceased

January 17, 2020

may 13, 2020

1. The defendant shall pay to the plaintiff 5,00,000 consolation money, each of which is 5% per annum from February 27, 2018 to March 13, 2020, and 12% per annum from the next day to the day of complete payment.

2. The defendant paid 8,00,000 won each to the plaintiff as the support fee for his stay.

3. The plaintiff's remaining claims against the defendant are all dismissed.

4.The costs of the lawsuit shall be borne by each person. 5. paragraphs 1 and 2 may be provisionally executed.

Defendant 1 served on Plaintiff 1,00,000 won each as a reference material and a copy of the complaint in this case.

15% per annum from the following day to May 31, 2019 and 12% per annum from the following day to the day of full payment.

The amount calculated at a rate shall be paid at the rate, and 26,793,876 won each as division of property, and this judgment has become final and conclusive.

The amount shall be paid at the rate of 5% per annum from the day following the day to the day of full payment, and the amount of support fees in the past;

Note 17,510,927 shall be paid.

1. Facts of recognition;

A. The Plaintiff and the Deceased were living together from around 2001 to January 201, 201, and exchanged with their respective family members and their descendants as their spouses for the other party.

B. During the living period of the Plaintiff and the Deceased, the Plaintiff was employed for living expenses due to the old age pension and his children’s money that the Plaintiff received, which was an over-the-regular part of the money, and was appropriated for the money. The Plaintiff was diagnosed by Ginson’s disease on 2007. From around January 2014, C began with C’s speed rapidly, and around January 2015, Cinson was used as an cerebral blood, and was diagnosed by “the diagnosis was conducted.”

D. On September 13, 2016, the decision to commence adult guardianship was rendered with respect to the Plaintiff, and the Plaintiff’s children were appointed as the towing after the completion of majority.

E. The Plaintiff was hospitalized in various hospitals and transferred to a convalescent hospital around February 2017.

F. While the Deceased drafted the Plaintiff more than one to three times a week, the Deceased did not bear the Plaintiff’s hospital expenses and nursing expenses. From the end of February 2016, the number of times of illness decreased, and the Plaintiff suspended the Plaintiff’s answer after being transferred to the hospital for medical treatment on or after February 2017.

G. The Deceased died on March 25, 2019 while the instant lawsuit was pending, and the Defendants inherited the deceased’s property.

[Ground of recognition] Gap evidence Nos. 1 through 7, 11, 12, 14 (including the number of branches; hereinafter the same shall apply), Eul evidence Nos. 7, video or video of Eul, family affairs investigator's investigation report, and the whole purport of oral argument; 2. Determination of a claim for distress and consolation money in a de facto marriage;

A. Determination on dependence on de facto marital relations

De facto marriage refers to the establishment of a de facto marital relationship between the plaintiff and the deceased, in full view of the above facts and the overall purport of the arguments, since a de facto marital relationship has the intention to marry between the parties, and there was an substance of marital life which is objectively recognized as a marital life under the social norms, even though there was no report of marriage, which is a formal requirement (see, e.g., Supreme Court Decision 94Meu1584, Mar. 28, 1995).

B. According to the above fact-finding of a de facto marital relationship, it is reasonable to view that the Plaintiff was employed as a cerebrovascular around January 2015 and was hospitalized for a long time. From the end of February 2016 of the Deceased’s time to reduce the number of times of illness, the Plaintiff’s de facto marital relationship between the Plaintiff and the deceased was resolved around February 2017 because the Plaintiff did not find the Plaintiff any longer after moving the Plaintiff to the medical care hospital in Ulsan on February 2017. According to the above fact-finding, the de facto marital relationship in this case is responsible for the failure of marriage and the amount of consolation money. According to the above fact-finding of the de facto marital relationship, the de facto marital relationship in this case is responsible for the failure of the deceased, who unilaterally resolved the de facto marital relationship without supporting the Plaintiff who lives due to cerebrovassis and dson’s disease. Accordingly, the deceased is liable for mental damage suffered by the Plaintiff.

2) The amount of consolation money to be paid by the deceased to the plaintiff shall be determined as 15 million won in full view of the various circumstances shown in the arguments, such as the period of de facto marriage, age, occupation, economic ability, the circumstance leading up to the de facto marital failure and the degree of responsibility of the deceased.

D. Sub-determination

Therefore, the Defendants, the inheritor of the Deceased, are obligated to pay to the Plaintiff damages for delay calculated at each rate of five million won (15 million won/3) and 12% per annum under the Civil Act from February 27, 2018, following the day following the delivery date of a copy of the complaint of this case, to the existence and scope of the Defendants’ obligations, and to the extent of such obligations. The Defendants are obligated to pay damages for delay calculated at each rate of 5% per annum under the Civil Act until March 13, 2020, and 12% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination on the claim for the partition of property

The Plaintiff and the Deceased did not jointly form the property during the de facto marriage period. However, the Plaintiff owned a share in the land, and the Deceased bears the obligation to refund the deposit amount of KRW 41 million to the lessee residing on the first floor of the said housing while owning the land and the housing on the ground. However, all of the above property is the unique property of each person acquired before the Plaintiff and the Deceased’s de facto marriage, and the circumstances where the Plaintiff and the Deceased lived with the money of the deceased’s children without any particular occupation are as seen earlier. Therefore, it is difficult to recognize the other party’s share of the other party’s specific property. Accordingly, the Plaintiff’s claim for the division of property did not exist, and therefore, is groundless.

4. Determination on the claim for support fees in the past

A. Summary of the plaintiff's assertion

From January 24, 2015 to the death date of the Deceased, the Plaintiff was spent for hospital expenses and nursing expenses, etc. of KRW 105,065,557 in total. The Deceased who was a de facto spouse is obligated to pay KRW 52,532,779, which falls under 1/2 of the deceased’s 1/2, to the Plaintiff as an excessive rejection fee.

B. Relevant legal principles

With respect to the past support allowances among the support obligations between husband and wife, barring special circumstances, even though the person to be supported requested to the person to be supported by the person to be supported by the person to be supported, the person to be supported may claim the payment of support allowances only for those after the person to be supported failed to perform the support obligation and delayed performance. Thus, a claim for the performance of the support obligation against one of the husband and wife who is the person to be responsible for supporting is just a ground for non-performance of the support obligation, and the spouse's failure to perform the support obligation is just a ground for non-performance of the support obligation. In other cases, the amount of support allowances between husband and wife should be determined by comprehensively taking into account the property status and revenue amount of both parties, living level and economic ability, social status, etc. of the person to be supported, the degree of need for support based on the support obligation should be determined by considering the circumstances and degree of failure in marriage and living (see, e.g., Supreme Court Decision 2002Da9329, Dec. 27, 2012).

C. Determination

1) There is no evidence to acknowledge that the Plaintiff filed a claim against the deceased for the performance of the duty to support prior to the claim for support fees in the past of the instant case. However, it is determined as follows: (a) the Plaintiff, upon being informed of the aforementioned recognition by adding to the entire purport of the argument, was used as cerebrovascular and was under long-term hospitalized treatment on or around January 2015; (b) the Plaintiff commenced adult guardianship for the Plaintiff on September 13, 2016; (c) therefore, it seems difficult for the Plaintiff to directly demand the deceased to perform the duty to support; and (d) the deceased was demanded by the Plaintiff to perform the duty to support from the Plaintiff’s guardian on or around September 2017; and (e) even if the Plaintiff did not demand the performance of the duty to support, there is a special reason to permit the payment of support fees in the past in light of the nature of the duty to support or the concept of equity. Therefore, it is determined that the deceased’s de facto marriage relationship between the Plaintiff and his guardian on September 217, 2015.

2) On this issue, the Defendant is subject to the application of the effect at the time of the short-term extinguishment of three years pursuant to Article 163 subparag. 1 of the Civil Act. While de facto marriage is terminated around January 2015, the Plaintiff added a claim for support fees in the past of the instant case on November 6, 2019 when filing an application for change of the purport of the claim and the cause of the claim, which was three years after the lapse of the three years thereafter, and the Plaintiff’s claim for support fees in the instant case is asserted to the purport that the statute of limitations has already expired.

However, the time to resolve de facto marital relations is around February 2017, and the claim for support fees under Article 163 subparag. 1 of the Civil Act refers to the claim for share support within a period of less than one year. Thus, the prior Defendants’ assertion on different premise is without merit without any further review. 3) The following circumstances are revealed by adding the amount of support fees for the past to the health care unit, the statement on Gap evidence No. 16 through 31, and the overall purport of the arguments, namely, the Plaintiff’s hospital expenses and nursing expenses from January 2015 to February 2017; KRW 62 million was paid; KRW 20 million was paid from the life insurance to the Plaintiff at the expense of blood transfusion; KRW 20 million was paid from the deceased’s 1937; the amount of support fees for the deceased’s 16 to 300,000 won was the economic condition of the deceased’s 20,000 won and the Plaintiff’s 400,000 won was the economic ability of the deceased’s 193.

5. Conclusion

Therefore, the plaintiff's consolation money and past support fee claim are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The plaintiff's claim for division of property is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong-il