(영문) 서울가정법원 2011.8.25.선고 2010드합00000 판결

2. The plaintiff (Counterclaim defendant) is the defendant (Counterclaim plaintiff) as consolation money of 30,000,000 won and the plaintiff's 2010 won.

10. From June 2 to August 25, 201, 5% per annum and 20% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s claim of consolation money against the plaintiff and the counterclaim of the defendant (Counterclaim plaintiff) are dismissed, respectively.

4. The Defendant (Counterclaim Plaintiff) shall pay the Plaintiff (Counterclaim Defendant) a property division of KRW 8,00,00, and 5% interest per annum from the day following the day on which this judgment became final and conclusive to the day of full payment. B. The Defendant (Counterclaim Plaintiff) shall pay 40% of the monthly retirement pension paid to the Defendant (Counterclaim Plaintiff) from the day following the day on which this judgment becomes final and conclusive to the day on which the Defendant (Counterclaim Plaintiff) dies at the end of each month at the rate of 40% of the monthly retirement pension paid to the Plaintiff (Counterclaim Plaintiff).

5. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant) and Defendant (Counterclaim Plaintiff) respectively. The costs of the lawsuit are assessed against Plaintiff (Counterclaim Defendant) and the remainder are assessed against Defendant (Counterclaim Plaintiff).

6. Paragraph 2 can be provisionally executed.

Purport of claim

In the principal lawsuit: Disposition No. 1 and the defendant (hereinafter referred to as the "Defendant") are the plaintiff (Counterclaim defendant, hereinafter referred to as the "Defendant").

“Plaintiff” is a consolation money of KRW 100 million and a copy of the main office of this case to the Plaintiff (hereinafter “Plaintiff”).

D. The defendant shall pay 20% interest per annum from the day after service to the day of full payment.

property division of the Plaintiff 109, 746, 790 won and the day following the day this decision became final and conclusive.

Service of a copy of the main office of this case, calculated at the rate of 5% per annum from the date of full payment to the date of full payment.

The payment of KRW 1,50,000 per month from the day after the day to the day before the defendant dies shall be made on the 25th of each month.

(n)

Counterclaim: Claim 1 of this case and the plaintiff are the defendant as consolation money of 50,000,000 won and the case

shall pay 20% interest per annum from the day after the delivery of a counterclaim to the day of full payment.

D. The Plaintiff’s property division amounting to KRW 142,180,000 and the judgment of this case against the Defendant

The amount of money shall be paid at the rate of 5% per annum from the day after the day of confirmation to the day of full payment.

Reasons

1. Determination on the claim of divorce and consolation money against each principal lawsuit and counterclaim

가. 인정사실 ( 1 ) 혼인 및 자녀 : 1980. 12. 30. 혼인신고, 슬하에 자녀 박XX ( 남 , ( 2 ) 혼인생활 및 파탄경위 ( 가 ) 원고와 피고는 혼인 후 1986. 12. 7. 경 시어머니가 돌아가실 때까지 중풍으로 고생하는 시어머니를 모시고 인천 부평에 있는 시댁에서 생활하였다. 원고와 피고는 시어머니가 돌아가신 후인 1987년 경 서울에 에 집을 얻어 이사하면서 서울 생활을 시작하였다. 피고는 등에서 공무원으로 근무하였는데 원 · 피고의 살림은 넉넉하진 않았으나 별다른 어려움 없이 생활할 수 있을 정도였다 .

B. On May 10, 1996, the Defendant was used as cerebral typosis and received hospitalized treatment from July 2, 1996 to July 3, 1996, and became the disabled in class 2 of this day. When the Plaintiff was used by the Defendant, the number of the Defendant was considerably decreased, and the number of the Defendant’s face-to-faced from the time when the Defendant was transferred to another place of work, and the Defendant was able to do so. The Defendant was again going to the workplace from 1997, but the Plaintiff and the Defendant were flick to the extent that they did not have a mutual gender relationship thereafter.

C) On September 200, the Defendant voluntarily retired. After the Defendant’s voluntary retirement, the Plaintiff maintained his livelihood while managing the public official pension and disability pension (the retirement pension and disability pension) that the Defendant received by the Defendant. In this case, the Plaintiff was frequently going out of the house rather than the house’s day, and the house’s day was mainly the Defendant and the Defendant’s children, whose body is difficult. The Plaintiff failed to pay the money properly to the Defendant, making it difficult for the Defendant difficult.

D. From around 2006, the Plaintiff began to operate a real estate brokerage business. Although the Plaintiff’s real estate brokerage business was not well-grounded, the Plaintiff was late returning to Korea on the ground of his/her business, and there was a growing number of days for returning back to Korea on the ground of his/her business. Accordingly, the Defendant began to interrogate the Plaintiff’s wrongful act. The Defendant aided the Plaintiff’s real estate brokerage business. The Plaintiff and the Defendant’s children were able to find any woman when he/she worked in the real estate brokerage office, and there was a dusting about the Plaintiff’s water while referring to the Plaintiff’s wrongful act. (ii) around March 2010, the Defendant took the issue of withdrawing money of KRW 12 million from the head of the Tong that was paid by the Plaintiff, and brought back the public official pension passbook that was entrusted to the Plaintiff and managed the pension. While managing the public official pension, the Plaintiff demanded the Defendant to divorce his/her living expenses to the Defendant.

(2) On July 19, 2010, the Defendant: (a) leased the house located in Gangdong-gu Seoul to KRW 100,000,000,000; and (b) on July 11, 2010, the Defendant leased the house located in Gangdong-gu Seoul to KRW 10,000,000,000; and (c) on June 19, 2010, the Plaintiff leased Yeongdeungpo-gu Seoul to KRW 16,000,000,000,000,000,000,000,000 won; (d) on July 18, 2010, the Defendant was living separately in the apartment; (e) the Defendant, as a director on July 11, 2010, received some of the deposit for residential lease; (e) however, the Plaintiff refused it, thereby assaulting the Plaintiff.

G) On August 13, 2010, immediately after the exclusion as above, the Plaintiff filed a divorce lawsuit of this case on August 13, 2010, and there was no dispute over the evidence for recognition of funded by the head of the Gu, each entry of Gap 1-3, 5, 8, 9, Eul 1, 3, 6, 13 evidence (including each number), the investigation report by family affairs investigators, and the purport of the entire pleadings.

B. Determination on the principal lawsuit and each counterclaim

The plaintiff's claim for the principal lawsuit and the defendant's counterclaim divorce are justified for each reason under Article 840 subparagraph 6 of the Civil Code.

【Grounds for Determination】 Taking into account various circumstances, such as the fact that the Plaintiff and the Defendant wish to divorce each other through a counterclaim with the principal lawsuit of this case, and the fact that the marriage between the Plaintiff and the Defendant seems to have deteriorated to the extent that they could not recover.

C. Determination on the claim for consolation money in the principal lawsuit and counterclaim (1) : To dismiss (2) the claim for consolation money in the principal lawsuit: 30 million won in part, and 5% per annum from October 6, 201 to August 25, 201, the day following the day when the copy of the counterclaim in the instant case was served on the Plaintiff, which is the day when the judgment in the instant case was rendered, and 20% per annum from the following day to the day of full payment.

[Grounds for Determination]

The fundamental and principal responsibility for the failure of the marriage between the Plaintiff and the Defendant lies in the Plaintiff: Taking into account the following circumstances: (a) the Defendant, who is in need of assistance by suffering from occupational accidents, is paying attention to the extra-family activities; (b) the Plaintiff’s improper conduct was provided; (c) the Defendant’s pressure and tampering for economic reasons; and (d) other various other circumstances:

2. Determination on the principal lawsuit and counterclaim for division of property

A. The circumstances leading up to the formation of the property (1) the Defendant served as a public official from the marriage, and the Plaintiff was in full charge of the household affairs as the main father, and the Plaintiff was engaged in real estate brokerage business since 2006. The main income of the Plaintiff and the Defendant was the Defendant’s salary, and the Plaintiff’s income was not much helpful for the household.

( 2 ) 원 · 피고는 혼인 후 인천 부평의 시댁에서 거주하다가 1987년 경 그동안 모은 돈 300만 원 등으로 서울 구로구 에 전세를 얻어 서울 생활을 시작하였고, 1988년 경에는 전세를 안고 소재 단독주택을 매수하였다 . ( 3 ) 원 · 피고는 1995. 4. 1. 피고의 누나로부터 원 · 피고가 신혼초 거주하였던 인천 부평구 ( 이하 ' 이 사건 부평동 대지 및 건물 ' 이라고 한다 ) 을 7, 500만 원에 매수하였다 . ( 4 ) 원 · 피고는 1997년 경 단독주택을 1억 3, 000만 원에 매도한 후 그 매매대금으로 전세를 얻어 살아가다가 2008년 경 서울 송파구를 전세보증금 1억 7, 000만 원에 임차하였다 . ( 5 ) 원고는 위 전세보증금 1억 7, 000만 원을 자신이 전부 가지고 2010. 7. 18. 서울 영등포구 로 이사하였으며 위의 전세보증금은 1억 6, 000만 원이다. 피고는 2010. 7. 11. 서울 강동구로 이사하였으며 위 주택의 전세보증금은 1, 000만 원이다 . ( 6 ) 피고는 2000. 9. 30. 경 퇴직하였는데 퇴직일 기준 퇴직연금일시금은 82, 606, 720원, 장해보상금은 54, 727, 500원이고 2010. 11. 현재 퇴직연금은 월 1, 739, 430원, 장해연금은 월 1, 384, 160원이다. 원 · 피고는 피고의 공무원연금을 가지고 생활해왔는데 2010 .

3. Until then, the Plaintiff is managing the Defendant respectively.

(b) Property and value of the property to be divided (1) : The value of each property and retirement pension (2) Divided in the annexed sheet of details of the property to be divided;

(1) Plaintiff’s net property: 246,578,786 won

(2) The defendant's net property: 390, 863, 639 won + The retirement pension that is paid monthly.

③ The total amount of net property of the Plaintiff and the Defendant: 637,442,425 + The amount of the above retirement pension.

【No dispute over recognized evidence”; entries in Gap 14, 16, 18; Eul 5, 14, 15, and 20 (including each number); each order to submit financial information by this court; the results of the market price appraisal entrusted by this court; the investigation report by family affairs investigators; and the purport of the whole pleadings

C. Determination as to the party’s assertion on the property subject to division (1) Specific Property Claim

The defendant asserts that the site and building of this case are the defendant's unique property donated from the defendant's leakage or donation, and thus, they are not subject to division of property.

However, since the plaintiff and the defendant purchased the above real estate at KRW 75 million, the above argument by the defendant is not accepted (it is reasonable to see that the plaintiff contributed to the maintenance of the real estate in this case, considering the fact that the plaintiff and the defendant have been married for about 30 years, and the plaintiff have been in exclusive charge of domestic affairs and childcare during the marriage period, it is reasonable to see that the plaintiff has contributed to the maintenance of the real estate in this case).

(2) The cancellation fee under the Plaintiff’s name.

The defendant asserts that the plaintiff's 12 million won terminated on August 2, 2010 after the marriage of this case was terminated on August 2, 2010 and the cancellation money of the cancelled on August 11, 2010 should be included in the active property owned by each plaintiff.

Unless there are special circumstances, such as that the amount withdrawn after the marriage failure was consumed for the purpose of maintaining common life or marital property of the married couple, it is reasonable to view that the withdrawing party holds the said amount of money. The Plaintiff’s aforementioned litigation cost is the Plaintiff’s claim that the amount was spent as the Plaintiff’s living expenses and the office’s operating expenses, but there is no evidence to support the allegation that the amount was spent as the Plaintiff’s living expenses and the office’s operating expenses, and there is no

(3) Deposits under the name of the defendant

The Plaintiff asserts that KRW 1,021,649, which was held in the account under the name of the Defendant as of May 25, 2010, and KRW 3,448,140, which was held in the account under the name of the Defendant as of May 25, 2010, should be determined as holding by the Defendant respectively.

According to the order to submit financial information to the bank of this Court on July 28, 2011 and the reply to the order to submit financial information to the bank of this Court on August 2, 2011, and the reply to the order to submit financial information to the bank of this Court on August 2, 2011, it is recognized that the balance of KRW 1,021,649 on the bank account in the name of the defendant as of May 25, 2010, and the account (the Defendant’s public official pension payment account) was each remaining amount of KRW 3,448,140 on May 25, 2010, but the said money was consumed due to the Defendant’s residential lease deposit and living expenses after the above point.

However, the money of the head of the Tong includes not only the defendant's disability pension but also the amount of KRW 10,000,000 as a property division. Therefore, this part of the plaintiff's assertion is without merit.

(4) The defendant alleged that he had a debt of KRW 15 million against pro-Japanese Kim, but it is not sufficient to acknowledge this only with the statement of No. 19, and there is no other evidence to acknowledge this. (5) The public official pension in the name of the defendant under the name of the defendant

The plaintiff asserts that the public officials pension that the defendant received every month shall be subject to division of property, and the defendant asserts that the public officials pension that the defendant will receive in the future cannot be confirmed and cannot be included in the property subject to division.

First of all, the part of the retirement pension among the public officials pension, ① the retirement pension among the public officials pension has the nature of entitlement to social security benefits and the post-paid wage at the same time, ② the retirement pension in the public officials pension can be subject to the division of property in the case of receiving the retirement pension in lump sum, but it is unreasonable that the same property cannot be subject to the division of property in the case of receiving it in the form of a pension is included or not included in the subject of the division of property at the choice of the recipient, ③ the defendant was able to serve as a public official based on the Plaintiff’s husband and was able to receive the retirement pension, and it is against equity if the retirement pension is excluded from the subject of the division of property on the sole ground that it is difficult to determine the amount, ④ Of the benefits under the National Pension Act, the amount of the retirement pension among the old-age pension under the National Pension Act shall be equally paid by recognizing the divorced spouse as the beneficiary of the divided pension under certain conditions (Article 64 of the National Pension Act).

Meanwhile, according to Article 43-2(1) of the Public Officials Pension Act, pension benefits are to increase or decrease every year the amount corresponding to the national consumer price fluctuation rate of the previous year compared to the previous year of the year immediately before the year immediately preceding that publicly notified by the Commissioner of the Statistics Korea pursuant to Article 3 of the Statistics Act. Therefore, the method of division is determined to pay the Plaintiff the amount equivalent to the Plaintiff’s property division ratio among the retirement pension paid every month from the time the Defendant

Next, among the public officials pension paid by the defendant, the accident pension paid by the defendant cannot be recognized as the plaintiff's contribution to receiving the disaster pension due to an accident in the line of duty, so it is reasonable to exclude the defendant from property division.

D. Ratio and method of division of property (1) : Plaintiff 40 %, Defendant 60 %

【Method of division of property (A) Other than retirement pension: The property under the name of the plaintiff and the defendant shall be determined according to the ownership of the property and the amount that should be attributed to the plaintiff according to the division of property, taking into account all the circumstances shown in the arguments in the instant case, such as the above-mentioned facts, the developments leading up to the acquisition and maintenance of the property subject to division, the degree of contribution by the plaintiff and the defendant to them, the process, duration and failure of marriage, the age of the plaintiff and the defendant, the current health, occupation and income status, etc.

Property division amount to be paid by the Defendant to the Plaintiff: 8,00,000 won

【Calculation Form】

① The Defendant’s share of net property between the Plaintiff and the Defendant: 637, 442, 425 won x 40% x 254, 976, and 970 won: ② The amount calculated by deducting the Plaintiff’s net property from the amount under the above paragraph (1) : 254, 976, 970 won - 246, 578, 786 won = 8,398,184 won to be paid to the Plaintiff. ② The Defendant’s share of property division amount to the Plaintiff: 8,00,000,000 won to be paid each month by the Defendant until the death of the retirement pension: The Defendant’s share of 40% of the retirement pension paid each month to the end of each month.

3. Conclusion

Therefore, the plaintiff and the defendant's claim for the principal lawsuit and the counterclaim divorce are accepted with merit, and the defendant's counterclaim consolation money claim is accepted with merit within the scope of the above recognition, and the plaintiff's claim for consolation money and the defendant's counterclaim remainder of consolation money are dismissed without merit. It is so decided as per Disposition with regard to the claim for division of property.

Judges

The presiding judge, Han-hee

Judges Kim Gung-sung

Judge Correctionho

Site of separate sheet

A person shall be appointed.

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