(영문) 부산가정법원 2015.6.18.선고 2014드합270 판결

2. The plaintiff (Counterclaim defendant)'s principal claim for consolation money, claim for division of property, and the defendant (Counterclaim plaintiff)'s counterclaim consolation money and the claim for re-division of the amount of consolation money are all dismissed.

3. The costs of lawsuit shall be borne by each party.

Purport of claim

In this lawsuit, the plaintiff (the plaintiff Lessee; hereinafter referred to as the "the defendant") pays 60,00,000 won as consolation money to the plaintiff (the plaintiff Lessee; hereinafter referred to as the "original plaintiff") and 20% per annum from the day following the delivery of the copy of the complaint of this case to the day of the final judgment, and 150,000 won per annum from the next day to the day of full payment. The defendant pays 150,000,000 won to the plaintiff as division of property.

Counterclaim: Paragraph 1 of this Article and Paragraph 1 of this Article, the plaintiff shall pay to the defendant the amount of consolation money of KRW 60,000,000, and the amount of KRW 5% per annum from the day following the delivery of a copy of the counterclaim of this case to the day of the imposition of the sentence, and KRW 20% per annum from the day following that to the day of full payment. The plaintiff shall pay to the defendant a property division of KRW 200,000,000 as a property division.

Reasons

The main lawsuit and counterclaim are also examined.

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

A. Facts of recognition

1) Family relationship

The Plaintiff and the Defendant did not have a child under the slock as a legally married couple who completed the marriage report on July 25, 2011, and thisCC is the Plaintiff’s father, westD’s mother, and E is the Defendant’s father.

2) Circumstances of the dissolution of marriage

A) The Plaintiff and the Defendant first met with the introduction of a professional marriage broker around April 201, 201, and the Plaintiff was a member of the Plaintiff********, and the Defendant was a member ********.

B) In the course of marriage between the Plaintiff and the Defendant, the Plaintiff’s parents paid KRW 30 million to the Defendant. The Defendant’s parents paid KRW 100 million to the Plaintiff’s parents, and the Defendant was liable for expenses for marriage, marriage expenses, and expenses for maring, etc., and 200 million won in the name of the Plaintiff and the Defendant’s co-ownership for the Plaintiff and the Defendant’s new marriage life ************************* (hereinafter referred to as the “instant apartment”). In the course of the preparation for marriage, the Plaintiff’s side and the Defendant’s side suffered conflict as a problem such as prefeitation.

C) At the time of marriage, the Plaintiff was at least KRW 130 million. Despite the Plaintiff’s monthly wage of KRW 300,000 or KRW 4 million, the Plaintiff and the Defendant, after marriage, engaged in excessive consumption of KRW 100,000 or more per annum by means of overseas travel, vehicle purchase, hobby activities, etc. In addition, after marriage, the Plaintiff and the Defendant continued to enjoy economic difficulties, such as continuing to enjoy loans, despite the continuous monetary support provided by the Defendant’s parents. Accordingly, as seen below 2-A, the Plaintiff and the Defendant, despite the continuous monetary support provided by the Defendant’s parents, continued conflicts between themselves.

D) On January 1, 2012, the Defendant: (a) contacted the Plaintiff with solitary male, who drinks alcohol, and kept it confidential; (b) in the future, there is no absolute task, and (c) talks with the Defendant after having the bones of math, and (d) around February 16, 2013, the Defendant prepared and sent a letter of “the details of the message, etc., reduced at least 20 km within six months, and acted with each other honestly without common knowledge (the mobile phone lock is no mobile phone locking), (a) I would like to find my own baby in good faith to make it available to both parents, and (a) I would like not to write out a text of telephone, “I would like to have the character of a man’s trust,” and (b) I would not have any other character of telephone, i.e., telephone.

E) On the grounds that the Plaintiff prepared a medical specialist’s test scheduled to take place on January 2013, the Plaintiff sought a room from May 2012 to live separately with the Defendant.

F) On October 27, 2013, the Plaintiff and the Defendant were faced with a pet dog that the Defendant keyed to the Plaintiff. During that process, the Defendant was issued a summary order of KRW 500,000,000 after she was faced with the Plaintiff’s scke and sckeed with the injury of the Plaintiff ( Busan District Court Branch Branch Decision 2014 High Court Decision 2014 High Court Decision 2015). In addition, around January 22, 2014, the Plaintiff and the Defendant sent the Plaintiff’s parents with the Defendant, without the Defendant’s name, with the reason that the Plaintiff scke and sckeed with the Defendant, and was sentenced to a fine of KRW 50,000,000 after being sentenced to a judgment of KRW 500,000 (the above court Decision 2014 High Court Decision 934).

In addition, the plaintiff and the defendant suffered conflict between the plaintiff and the defendant on the issue of marital relationship, pregnancy, multilateral, the attitude of their parents.

3) Progress of the relevant case

A) On February 18, 2014, E filed a claim for a loan against the Plaintiff and the Defendant under Busan District Court Branch 2014Kahap474, Busan District Court. On September 4, 2014, the said court confirmed that the Plaintiff and the Defendant had the right to claim a refund of the lease deposit under the lease agreement entered into with respect to the instant apartment. The said judgment was finalized on October 21, 2014.

B) On March 11, 2014, SDR filed a lawsuit against the Plaintiff and thisCC seeking loans, etc. with the Busan District Court 2014Gahap3688. In the lawsuit above, SDR loaned KRW 110 million to the Plaintiff during the period from February 18, 2013 to March 22, 2013, and lent KRW 100 million to thisCC around June 2, 201. On March 30, 201, each of the above loans and vehicle payments was sought to be paid to the Plaintiff at the Busan High Court 200,000 won, but the above court appears to have dismissed the Plaintiff’s claim to the Plaintiff on January 14, 2015 and the above decision was dismissed for the reason that SCC’s loan and vehicle payments were made to the Plaintiff 10,000,000 won.

C) On August 29, 2014, the Defendant filed an application with the Plaintiff for a payment order for the loan of KRW 200,000 with the Busan District Court 2014Guj2207, but, as the Plaintiff raised an objection, the Plaintiff was performing the said lawsuit with the same court 2014Gau26633. On November 19, 2014, the Defendant filed an appeal with the Busan District Court 2014Na18688 as of November 19, 2014.

[Grounds for recognition] The evidence Nos. 1 through 3, 5, 6, 7, 9, 11, 22, 23, 28, 34, 36, 37, 77, and the evidence Nos. 12, 19, 36, 37, 51, 55 through 57, each of the evidence Nos. 1 through 3, 5, 6, 7, 9, 22, 23, 28, 34, 36, 37, 37, 51, 55, and 57, the family affairs investigator's investigation report, and the purport of the whole pleadings

B. Determination

1) A claim for divorce between a principal lawsuit and a counterclaim: Each of the reasons under Article 840 subparagraph 6 of the Civil Act exists.

2) Claim for consolation money for each principal lawsuit and counterclaim: None of the grounds therefor.

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances such as the plaintiff and the defendant wanting a divorce between themselves through the principal lawsuit and the counterclaim of this case, and the restoration of trust and the fact that it seems impossible to continue the marital life.

(2) The liability for the failure of marriage is both parties.

The Plaintiff’s wrongful act, refusal of marital relations, negligence, and excessive consumption, false language violence, violence, and assault against the Defendant’s parents, and unfair treatment of the Defendant’s parents. The Plaintiff cited the Plaintiff’s death and waste walls, verbal abuse, assault and assault, sexual function disorder and treatment, gambling, and the Plaintiff’s parent’s excessive demand for money against the Defendant.

In light of the above: (a) the Defendant committed an act that could undermine the trust of the couple, and (b) made excessive expenditures compared to imports; (c) the Plaintiff was also at the increase of the household debt by neglecting the expense of the household or making unreasonable loans from the financial rights, etc.; and (d) the Plaintiff neglected to understand the Defendant or make emotional efforts to support the Defendant; and (c) considering the above, there was a conflict between both parties, such as the fact that both parties had done an act that could undermine the trust of the couple, and that the conflict has been deepened by verbal abuse and assault, it is reasonable to deem that the relationship between the Plaintiff and the Defendant reached a failure due to the fault of both parties, and that the degree of responsibility of both parties is equal.

In addition, the reason for the remaining failure of the Plaintiff and the Defendant’s assertion is not sufficient to acknowledge the assertion solely based on the evidence submitted to this court, or it is difficult to view it as the ground for divorce of this case as the reason for divorce of this case.

C. Sub-committee

Therefore, the plaintiff and the defendant are divorced by the principal lawsuit and the counterclaim, and all of the plaintiff's claims for consolation money and the defendant's counterclaim consolation money are without merit.

2. Determination as to the claim for division of property

A. Details about the formation of the property;

1) The plaintiff was in possession of around January 2008, 208,***** Si** Dong*************************** the limit on the above real estate purchase fund, etc.************* account (*******************************)) and has a loan obligation of KRW 50 million in a bank.

2) At the time of marriage, the Plaintiff served as****, and until 2012, there was an average of approximately KRW 3 million per month, and around KRW 4 million per month from around 2013, and the Defendant was in full charge of household affairs after marriage ****** *.

3) As the Plaintiff and the Defendant increased the credit card payment debt during marriage, around January 5, 2012, they received loans of KRW 83 million from the Defendant’s parents around January 5, 201 ** the Plaintiff’s above ** bank loan obligations of KRW 50,000,000, which is the remainder of KRW 4,9500,000,000. The remainder of KRW 330,500,000,000,000 won, was used for the remainder of KRW 30,000,00 won, Defendant’s living expenses, card loan payments, and credit card loan obligations. Nevertheless, the Plaintiff and the Defendant still received the credit card payment from the Defendant’s parents at the time of marriage around September 2012 ** membership ** 30,0000,000 won and used it for payment of obligations.

4) Since February 18, 2013 to March 22, 2013, SDR sent the Plaintiff and the Defendant a total of KRW 11,9,300,000 to the Plaintiff and the Defendant. The Plaintiff and the Defendant used these money to pay KRW 13,00,000,000 for bank loans *** bank loans 83,000 won.

5) After maturity, the Won who was urged to pay the debt due to the unpaid interest on the credit card payment, unpaid credit card payment, etc., and the defendant obtained a loan equivalent to approximately KRW 50 million in total from April 2013 ******** in the name of the plaintiff on July 2, 2013 * in the limit of the Muss account of the bank * KRW 50 million and withdrawn from the above ***** (State) in the amount of debt to the Muss account, etc., and consumed the remainder of KRW 30 million in total as living expenses, etc.

6) On November 201, 2013, the Plaintiff sold in KRW 35 million to the Plaintiff’s parent at the time of marriage, and paid in full the remainder of the obligation 30 million to the Defendant’s parent **** (State) and currently there remains the obligation in the name of the Plaintiff as indicated in the attached sheet of the separation.

[Ground of recognition] The entries in Gap evidence Nos. 5, 33, 36 through 40, 51, 52, 68 through 74, Eul evidence Nos. 18, 19, and Eul evidence Nos. 30-2 (including each number), family affairs investigator's investigation report, and the purport of the whole pleadings

(b) Property and value to be divided;

In the same manner as the list of property in the attached sheet of division

C. Judgment on the parties’ assertion

1) The Defendant asserts that the 6.7 million won in total delivered to the Plaintiff at the time of marriage should be included in the subject of division of property with the Plaintiff’s active property. However, as the honor has a similar legal nature as a gift under the condition to cancel the non-establishment of marriage, once the marriage continues to exist for a considerable period of time due to the establishment of the marriage, the Defendant cannot claim damages equivalent to the return or value even after the marriage is terminated (see Supreme Court Decision 2014Meu329, Jun. 12, 2014), and the foregoing tugboats are excluded from the subject of division of property with the Plaintiff’s unique property.

2) As stated in the above 2-A(4) above, the Defendant asserts that the money that DoD sent to the Plaintiff or the Defendant should be included in the subject of division of property in the active property under the name of the original property. However, since there is no evidence to deem that the Plaintiff was holding the said money even as of the date of the closing of argument in the instant case, which is the base date for division of property, the Defendant’s assertion is rejected.

(d) The division of property;

1) Determination on the claim for division of property in the principal lawsuit

Even in cases where the division of property exceeds the total amount of positive property, and the result of division of property is determined ultimately, the court may accept the claim for division of property by determining the specific method of division, etc., if it is deemed appropriate to allow the division of property, taking into account all the circumstances, such as the nature of the debt, the relationship with the creditor, the existence of physical fences, etc. However, in cases of a claim for division of property, it shall also be considered not only the liquidation of the property relationship created during the marriage, but also the support factors, such as consideration of the parties’ livelihood security after the marriage. Therefore, in cases where the division of property is made by division of property, if the debt exceeds the debt or the state of excess of the existing debt becomes worse, the court shall determine whether to have the debt shared, and the method of sharing the debt (see Supreme Court en banc Decision 2010Meu471, Jun. 20, 2013).

In this case, the total amount of the Plaintiff’s passive property exceeds the total amount of positive property, and the Defendant has no positive property and passive property. Accordingly, the division of the property of this case would be determined whether or not the Plaintiff’s obligation is shared to the Defendant, and the Defendant’s parents would have lived in a new marriage house created by the Defendant’s parents. The Defendant’s parents would have provided money of KRW 1.5 million or KRW 2 million or KRW 1.3 million or KRW 9.3 million or KRW 9.3 million or KRW 1,000, which suffered from high economic difficulties before the marriage, and the Plaintiff would not be able to accept the Plaintiff’s claim against the Defendant for division of property, taking into account all the circumstances such as the Plaintiff’s active property, and the Plaintiff’s claim for division of property, which is not suitable to the extent that the Plaintiff did not gain any profit during the marriage.

2) Determination on the counterclaim for division of property

Since the small property under the name of the plaintiff exceeds his/her obligation exceeding his/her active property as shown in the attached sheet of statement of property division, the defendant's counterclaim of property division claim is without merit.

3. Conclusion

Therefore, the plaintiff and the defendant's claim for divorce are accepted on the grounds of their reasoning. The plaintiff's claim for consolation money and division of property, the defendant's counterclaim for consolation money and division of property are dismissed on the grounds of each ground. It is so decided as per Disposition.

Judges

Judges Do-constition

Judges Kim Jin-jin

Judges Park Jong-hee

Note tin

1) The initial EE claims that the Plaintiff and the Defendant lent the lease deposit amount of KRW 200 million for the instant apartment, and that the Plaintiff and the Defendant claim the loan.

The claim for the refund of the lease deposit with respect to the apartment of this case is filed by the E, and the claim is modified to the purport of the claim.

B confirmed B and revised B’s claim by seeking the return of KRW 200 million loans to the Plaintiff and the Defendant.

참조조문

-민법 제840조 제6호

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