2017Reu364 (principal office) Divorce

2018u20082 Divorce, etc.

A

Busan Family Court Decision 2016Ddan9403 decided August 25, 2017

June 24, 2020

August 26, 2020

1. The judgment of the first instance court, including the claim for counterclaim divorce by the Defendant (Counterclaim Plaintiff) added by this court, shall be modified as follows:

The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) shall be divorced by the principal lawsuit and counterclaim.

2. The Plaintiff (Counterclaim Defendant)’s claim for consolation money added to this Court and the Defendant (Counterclaim Plaintiff)’s counterclaim claim are dismissed, respectively.

3. Following the Defendant (Counterclaim Plaintiff)’s counterclaim division claim added by this Court:

A. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 70 million won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment; and

B. From the day following the date this judgment became final and conclusive to the day before the death of the Plaintiff (Counterclaim Defendant) or the Defendant (Counterclaim Plaintiff), 50% of the retirement pension that the Plaintiff (Counterclaim Defendant) would receive from the Public Official Pension Service is divided into the Defendant (Counterclaim Plaintiff).

4. The total costs of the lawsuit including a principal lawsuit and a counterclaim shall be borne respectively;

1. Purport of claim

A. Main suit: The Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) is divorced from the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”). The Defendant shall pay to the Plaintiff 30 million won as solatium and the amount calculated at the rate of 6% per annum from July 18, 2016 to the delivery date of the instant complaint, and 15% per annum from the next day to the day of full payment (the Plaintiff added the claim for solatium).

B. Counterclaim: The defendant and the plaintiff shall be divorced. The plaintiff shall pay to the defendant 50 million won as consolation money and 15% interest per annum from the day following the delivery of the counterclaim of this case to the day of complete payment. The plaintiff shall pay to the defendant 70 million won as division of property and 5% interest per annum from the day following the day after this judgment became final to the day of complete payment. The plaintiff shall pay to the defendant 70 million won as division of property and 5% interest per annum from the day after this judgment becomes final and conclusive to the day after the defendant dies (the defendant filed a counterclaim) the amount of 50% interest per month from the public official's pension amount to the day after this judgment becomes final and conclusive,

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim of appeal is dismissed.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The plaintiff and the defendant were legally married couple who completed the marriage report in 1977, and they had two male children as their children (each adult).

B. The Plaintiff and the Defendant: (a) 10 years prior to each other, followed a separate living at a single house; and (b) the Defendant, upon drinking alcohol, habitually duplicating the Plaintiff with verbal abuse, intimidation, or abusive language, without being able to do so.

C. Around 1988, the Plaintiff’s father died and the Plaintiff’s mother was living together in a congested place from around that time. Around 1998, the Plaintiff’s father’s death was 10 years after the Plaintiff’s father’s death to Busan, and the Defendant did not visit the Plaintiff’s mother for about 10 years, and the Plaintiff’s mother did not attend the hospital until he was hospitalized in the hospital for several months before the Plaintiff’s death to her disease. As such, the Plaintiff’s death was caused by the Plaintiff’s interference with the Defendant.

D. The Plaintiff, as a result of the instant learning, was engaged in a series of voice or a voice call from May 2015 to August 2016, at the same time, from around May 2015, which operated the said house.

E. On June 30, 2016, the Plaintiff and the Defendant decided to proceed to a divorce and went to the court along with the agreement on the division of property. As the Defendant did not agree on the division of property, the Defendant rejected the divorce and left at home.

F. On July 18, 2016, the Plaintiff filed a lawsuit for divorce of this case against the Defendant. On August 17, 2016, the Plaintiff and the Defendant are separate from the Plaintiff and the Defendant, while living together in a mixed country with the house and room in Gyeonggi-do as of August 17, 2016.

[Ground of recognition] Gap 1 to 5, 7, 12 evidence (including each number; hereinafter the same shall apply), Eul 1 to 3, the family investigation report by the family affairs investigator of the first instance court, the purport of the whole pleadings

2. Determination as to the claim for divorce and consolation money, respectively, against the principal lawsuit and counterclaim

A. A. A claim for divorce of each principal lawsuit and counterclaim: Each of the grounds under Article 840 subparagraph 6 of the Civil Act exists. B. Each claim for consolation money for the principal lawsuit and counterclaim is without merit.

【Reasons for Determination】

1) Recognition of failure in the marriage: The marriage relationship between the plaintiff and the defendant was no longer recovered in full view of the following circumstances: (a) the above recognition and the fact that the plaintiff want to proceed to divorce for a long time; (b) the defendant has been living in the first instance court; (c) the plaintiff's statement that "the plaintiff will proceed to all the property to the defendant; and (d) the plaintiff will proceed to divorce against the defendant; and (e) the plaintiff's statement that "the plaintiff and the defendant did not have good status before the end," etc., was reached to the extent that the marriage between the plaintiff and the defendant is no longer recovered.

2) Responsibility for the dissolution of marriage: Each party shall be responsible for the dissolution of marriage, the degree of which is equal.

A) As to this, the Plaintiff asserted that the Defendant committed an unlawful act, and abandoned the Plaintiff in bad faith, such as refusal of marital relations, etc., and that the Plaintiff’s lineal ascendant was liable for the dissolution of marriage. However, the evidence submitted by the Plaintiff alone is insufficient to recognize it. Thus, the Plaintiff’s assertion is without merit.

B) The Defendant asserts that the Plaintiff should pay consolation money to the Defendant on the ground that the Plaintiff is responsible for the failure of marriage because the Plaintiff appears to have sustained a fraudulent act from March 2016, while continuing the illegal act from around March 2016. However, it is insufficient to recognize that the facts recognized earlier and the evidence submitted by the Defendant alone constituted a fraudulent act between the Plaintiff and the Defendant, and there is no other evidence to acknowledge otherwise.

On the other hand, the plaintiff and the defendant have been living a separate life at a house that had been used for more than 10 years, and the plaintiff and the defendant agreed to divorce on June 30, 2016 and went to the court at the same time. The plaintiff and the defendant did not reach an agreement on the division ratio of property, and the defendant refused divorce, and the defendant made verbal abuse, intimidation, or abusive language to the plaintiff upon drinking alcohol. In light of these facts, in light of these facts, the marriage between the plaintiff and the defendant seems to have been in a situation to the extent that it is impossible to recover from the failure due to the failure of the plaintiff and the defendant's marriage, even if the plaintiff and the defendant committed a fraudulent act, it is difficult to view that the marriage between the plaintiff and the defendant had reached a failure due to such unlawful act, and therefore the above argument by the defendant is therefore without merit.

3) Each claim of consolation money and counterclaim is without merit: It is recognized that the plaintiff and the defendant are equal to the defendant's responsibility for the dissolution of marriage. Therefore, the plaintiff's claim of consolation money and the defendant's claim of counterclaim consolation money are without merit.

3. Determination on the counterclaim for division of property

(a) Property and value to be divided;

1) Each property listed in the separate sheet of description of the property to be divided

2) A retirement pension received each month by the Plaintiff from the Public Official Pension Service

B. Determination of the allegations by the parties: The grounds for recognition of the list of property subject to division are as shown in the column of “based on recognition” and the “reasons for non-recognition of the list of property items without recognition” as shown in attached Table 1. The method and amount of division of property.

1) Taking into account the name, form, process of acquisition, convenience of division, etc. of each property indicated in the attached Table 1, the pertinent property subject to division shall be reverted to the Plaintiff as at the present possession, and as a result, the part of the amount ultimately reverted to the Defendant shall be deemed to be paid in cash by the Plaintiff to the Defendant. Furthermore, it is reasonable to allocate the amount of property division to the Defendant from the date following the date when the Plaintiff acquired the Plaintiff’s entitlement to retirement pension directly from the public official pension or the Defendant to the date before the date when the Plaintiff acquired the entitlement to retirement pension directly by the public official pension or the Defendant, and the degree of contribution to the formation and maintenance thereof, the Plaintiff and the Defendant’s age, occupation, period of married life, and period of his/her service as a public official (the Plaintiff was enrolled around July 1997 and retired from the Plaintiff on December 208, 208).

D. Sub-committee

Therefore, as division of property, ① the Plaintiff shall pay to the Defendant the amount of KRW 70 million and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment became final and conclusive to the day of full payment. ② The Plaintiff shall divide 50% of the retirement pension to be paid by the public official pension corporation from the day following the day this judgment becomes final and conclusive until the day the Plaintiff or

4. Conclusion

The plaintiff's claim for divorce of the principal lawsuit and the defendant's counterclaim divorce brought at the trial court shall be accepted for each reason, and the plaintiff's claim for consolation money and the defendant's counterclaim consolation money brought at the trial court shall be dismissed for each reason, and the defendant's counterclaim property division claim brought at the trial court shall be determined as above. Therefore, the judgment of the first instance court, including the counterclaim divorce claim brought at the trial court, shall be modified as prescribed in Paragraph 1, and the principal lawsuit and counterclaim consolation money claim brought at the trial court shall be dismissed for each reason, and it shall be decided as per the above with regard to the defendant's counterclaim property division claim brought at the trial court.

The presiding judge shall be appointed from among the judges;

Judge Muma decoration

Judges Dognaia

1) Although the instant counterclaim is indicated as the Defendant, it is apparent that it is a clerical error.