Plaintiff (English name omitted) (Law Firm Hyan, Attorneys Shin Dong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Uniform, Attorney Choi Sung-jin, Counsel for defendant-appellant)

Principal of the case

August 9, 2019

Incheon Family Court Decision 2017Ra3409 decided November 21, 2018

1. Of the judgment of the court of first instance, the part regarding child support and visitation right shall be modified as follows:

A. Part concerning child support

1) From October 2019 to the date when the principal of the case becomes adult with the child support of the principal of the case, the Plaintiff shall each bear 300,000 won per month, and the Defendant shall bear 50,000 won per month, respectively.

2) The Plaintiff and the Defendant opened a new deposit account in the name of “(the Plaintiff’s name omitted) or (the Plaintiff’s name omitted) (the Plaintiff’s name omitted)” to ensure transparent management of the child support of the principal of the case that the Plaintiff and the Defendant are liable to bear, as described in the foregoing paragraph 1, and issued a physical card connected thereto.

3) When a new deposit account is opened as described in paragraph 2 above and a physical card is issued:

A) The plaintiff and the defendant shall deposit the child support to be borne by them, such as the above 1) on the 10th of each month as the above deposit account.

B) Child care allowances or child allowances, etc. paid by the State or a local government to assist the bringing of the principal of the case shall be received as the said deposit account.

C) The Plaintiff spent expenses incurred in fostering the principal of the case (such as expenses for child-care centers or kindergarten members, hospital expenses, school expenses, school expenses, expenses for purchasing school supplies or teaching materials, and expenses for purchasing goods, insurance premiums, etc. required for daily life of the principal of the case, such as clothes or sanitary supplies). The Defendant shall be informed of the details of transactions of the deposit account as stated in Paragraph (2) of the above Article on a quarterly basis at the end of the pertinent quarter.

B. Interview right part

The defendant shall respect the principal of the case as much as possible until the principal of the case becomes adult and may visit the principal of the case as follows, and actively cooperate with the plaintiff so that the visitation right may be exercised smoothly.

(i) the date of visitation;

(A) From 11:00 on Saturdays to 19:00 on Sundays 19:00 each month and from 2nd Sundays 11:00 to 19:00 each month;

B) Two (3) days each during the summer and winter vacation period.

2) Place for visitation: The place designated by the defendant;

3) Method of delivery: The method by which the plaintiff takes the principal of the case in his residence and delivers the principal of the case to the defendant; the defendant completed visitation rights at a place where the principal of the case can be transferred from the plaintiff and then takes the principal of the case to the plaintiff's residence, and then transfers the principal of the case to the plaintiff.

4) Other: The Plaintiff and the Defendant may change the date, time, place, and method of delivery of the visitation under mutual agreement at least three (3) days prior to the date and time of the visitation. The said conciliation and alteration must be made with the top priority of the emotional stability and welfare of the principal of the case by respecting the intent of the principal of the case as much as possible.

2. The defendant's remaining appeal and the plaintiff's incidental appeal are dismissed, respectively.

3. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

The plaintiff and the defendant shall be divorced from the plaintiff. The defendant shall pay to the plaintiff 30 million won as consolation money and 5% interest per annum from the day following the delivery of a copy of the application for change of the purport of the claim and the cause of the claim of this case to the day of the judgment of the court of first instance, and 15% interest per annum from the next day to the day of complete payment. Property division shall be divided to the plaintiff. The plaintiff shall complete the procedure for property division on the plaintiff's portion of real estate indicated in the attached list to the defendant, and at the same time, he shall complete the procedure for ownership transfer registration on the ground of the fixed date of this judgment. The defendant shall pay to the plaintiff 33,568,113 won as consolation money and 5% interest per annum from the day following the day of transfer of the above real estate share to the day of full payment. The defendant shall designate the plaintiff as the person with parental authority and the guardian of the principal of this case. The defendant shall be 600,000 won per month from the first judgment to the day of the last day of the year when the principal enters an elementary school until the year.

2. Purport of appeal;

Of the judgment of the first instance, the part against the defendant regarding the designation of a person with parental authority and a custodian, child support, and visitation right shall be revoked, and the plaintiff's claim corresponding to the revocation

3. Purport of an incidental appeal;

The portion of consolation money in the judgment of the court of first instance is revoked, and the defendant shall pay to the plaintiff 30 million won consolation money with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the judgment of the appellate court, and 15% interest per annum from the next day to the day of full payment.

1. Scope of adjudication of this court;

The plaintiff filed a lawsuit against the defendant in this case seeking divorce, consolation money, division of property, designation of a person with parental authority, and child support. The court of the first instance accepted the plaintiff's claim for divorce, dismissed the claim for consolation money, partly accepted the claim for division of property, designated the plaintiff as the person with parental authority and custodian of the principal in this case, and sentenced the decision as stipulated in Articles 5 and 6 of the first instance court's judgment with respect to child support and visitation right (ex officio judgment). The defendant appealed against the designation of a person with parental authority and custodian, child support and visitation right. The plaintiff appealed against the above part of consolation money that was lost by the defendant's appeal. Thus, the scope of the judgment of this court is limited to the part 1) of this case, the designation of a person with parental authority

2. Judgment on the claim for divorce and consolation money

The reasoning for the court’s explanation on this part is as stated in the part concerning “2. Judgment on the claim for divorce” in the judgment of the court of first instance. As such, Article 12 of the Family Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are cited.

3. Determination on designation of a person with parental authority and a custodian, claim for child support, visitation right

A. Determination as to the designation of a person with parental authority and a custodian

1) Relevant legal principles

Parental authority, including fostering a minor, is the parent's right and duty, which directly affects the welfare of the minor and thus, in determining who is a minor's child's parent's child's child's parents' designation as a minor child or a custodian in cases of divorce, it shall be determined in the direction that is most helpful and appropriate for the growth and welfare of the minor, by comprehensively taking into account all the factors such as the minor's sex and age, parents' patriotism and intent for fostering, as well as the economic ability necessary for fostering, the degree of friendship between the father or mother and the minor, and the minor's opinion (see, e.g., Supreme Court Decisions 2008Meu380, May 8, 2008; 2008Meu3105, Apr. 9, 2009).

2) Determination

In light of the above legal principles, the plaintiff has mainly raised the principal of this case during a separate period of time, and there is no discovery that the welfare of the principal of this case has been impeded. ② The defendant unilaterally moves the principal of this case to ○○ who is a high country, and thus concerns that the defendant's visitation right will be undermined, and accordingly, the defendant also should be designated as a joint person with parental authority for the principal of this case. However, the plaintiff has filed an application for naturalization during the appellate trial, and a large number of relatives, including the plaintiff's mother, reside in Korea for a considerable period of time after the birth, and the plaintiff has resided in Korea without the defendant's consent, it is difficult to expect that the plaintiff will unilaterally move the principal of this case to ○○, etc., which is a high country, without the defendant's consent, and it is difficult to expect that there is a conflict between the defendant and the principal of this case in relation to the method of fostering the principal of this case and the defendant's opinion about the method of fostering the principal of this case.

B. Determination on the part concerning child support

① Parent is jointly responsible for raising a child of the child, and in principle, the expenses for raising the child shall be jointly borne by both the Plaintiff and the Defendant. This is an obligation arising from the nature of the parent-child relationship without examining who is neither the parent-child relationship nor the actual parent-child relationship (see Supreme Court en banc Order 92S21, May 13, 1994). Accordingly, if both the Plaintiff and the Defendant need to share a certain amount of child support according to their income and property status as their parents, the Plaintiff should regularly pay the child support to the Plaintiff and the Defendant for the purpose of preventing the increase of child support under the Civil Act’s current status of the child support. ② If the Plaintiff and the Defendant need to share a certain amount of child support, it would be urgent for the Plaintiff to do so without prejudice to the welfare of the principal of the case, namely, the Plaintiff’s person of parental authority and the designated Plaintiff’s child support to whom the said child support would be paid at the expense of the Plaintiff’s new person of parental authority or the Defendant’s new bank account.

C. Determination on visitation (ex officio)

The defendant, who is not designated as the principal of this case, may visit the principal of this case unless it conflicts with the welfare of the principal of this case. The defendant also seems to have a close connection with the principal of this case. The defendant shows a strong intention of fostering the principal of this case. Accordingly, it is necessary to continue the emotional relation with the principal of this case after sending a lot of time with the principal of this case to the extent that the circumstances permit, and it seems that it will be more helpful for the principal of this case to grow properly, and it would be more difficult for the principal of this case to enter the principal of this case to the extent that the principal of this case and the defendant's right of fostering the principal of this case, such as the defendant's right of fostering the principal of this case, and it would be more difficult for the principal of this case to enter the principal of this case to the extent that the principal of this case's right of fostering the principal of this case, and it is more difficult for the plaintiff and the defendant to find out the method of fostering the principal of this case's right of fostering and to develop his living environment than the principal of this case.

3. Conclusion

Therefore, the plaintiff's claim for consolation money is dismissed as it is without merit, and the part concerning the designation of a person with parental authority, a person with parental authority, a person with parental authority, a child support claim, and an interview right shall be determined as above. Since the part concerning the claim for child support and the visitation right in the judgment of the court of first instance are unfair as they are partly concluded, the defendant's appeal is partially accepted, and the defendant's remaining appeal about the designation of a person with parental authority and a person with custody and the plaintiff'

[Attachment]

Judges Jeong-young (Presiding Judge)

1) However, in order to determine the claim for consolation money based on divorce, the claim for divorce should be accepted. Therefore, the part of the claim for divorce should also be examined together with the following.