2017Ro21378 (principal office), divorce, designation of a custodian, etc.

2018Reu125 (Counterclaim) Divorce and solatium

A

Section B.

1. Sick:

2. Fixedness;

Busan Family Court Decision 2017Ddan209194 decided November 28, 2017

May 22, 2019

June 19, 2019

1. The part of the judgment of the first instance is revoked. The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) shall be divorced by a counterclaim filed with the principal lawsuit and this court.

2. The part concerning the child support in the judgment of the court of first instance, including the child support for which the claim is expanded by this court, shall be modified as follows. The defendant shall pay to the plaintiff 15 million won as the child support of the principal of the case in the past, and shall pay 30,000 won per capita from June 2019 to the date when the principal of the case in the future reaches each adult age.

3. The Defendant (Counterclaim Plaintiff) may visitation the instant principal as follows:

(a) Details of the visitation right;

1) The Defendant (Counterclaim Plaintiff) from the time the instant judgment became final and conclusive until the day before the principal becomes a middle school student may have a telephone conversation with the principal of the instant case from 18:0 to 18:10 each week. The said telephone call time may be extended as desired by the principal of the instant case. The said telephone call time may be changed for the purpose of the principal of the instant case’s schedule, but the said call time shall be notified three days prior to the date of the instant judgment and shall be subject to the consent of

2) In addition to the telephone communications referred to in paragraph (1) from the date the principal of the case became a middle school student to the date the principal of the case reaches each adult age, the Defendant (Counterclaim) may exchange the principal of the case at the place designated by the Defendant (Counterclaim Plaintiff) from the first week of each month and the third Saturday to the same day from 10:00 to 20:00 of the same day. In this case, the Defendant (Counterclaim Plaintiff) shall receive the principal of the case from the place of residence of the principal of the case or the place promised with the Plaintiff (Counterclaim Defendant) in a safe and appropriate manner and shall deliver the principal of the case at the above place. The above interview negotiation schedule may be changed on the grounds of the schedule, etc. of the principal of the case, but it shall be notified three days prior to the

(b) Matters to be observed;

1) The Plaintiff (Counterclaim Defendant) shall actively cooperate with the Plaintiff so that visitation right can be exercised smoothly.

2) The Defendant (Counterclaim Plaintiff) must hold visitation rights in the direction of respecting the intent of the instant principal to the maximum extent possible.

4. All of the Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s appeal expanded by this court and the Defendant (Counterclaim Plaintiff)’s remaining counterclaim claim filed with this court are dismissed.

5. The total costs of the lawsuit shall be borne individually by each party.

6. Paragraph 2 can be provisionally executed.

1. Purport of claim

The principal lawsuit: The plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter referred to as "the plaintiff") are divorced. The defendant shall pay 30 million won as consolation money to the plaintiff. The defendant shall designate the plaintiff as the person in parental authority and the guardian of the principal of the case. The defendant shall pay the plaintiff 35 million won as the child support of the principal of the case in the past, and shall pay the plaintiff 35 million won as the child support of the principal of the case in the future from March 1, 2018 to the day when the principal of the case becomes the adult (the plaintiff added the claim for consolation money at the appellate court, and extended the period and amount of the child support claim).

Counterclaim: The Plaintiff and the Defendant are divorced. The Plaintiff shall pay consolation money of KRW 50 million to the Defendant. The Defendant shall be designated as the person in parental authority and the guardian of the principal of the case. The Plaintiff shall pay to the Defendant KRW 300,000 per capita of the principal of the case by the day the principal of the case becomes an adult with the child support of the principal of the case. The Defendant may have an interview with the principal of the case (the Defendant filed a counterclaim in the appellate trial).

2. Purport of appeal

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

1. Determination on the legitimacy of a subsequent appeal

A. The parties' assertion

The Defendant did not know the fact that the instant lawsuit was brought to the wind working in another place from April 2017 to October 201 of the same year. Ultimately, the first instance court proceedings were followed by service by public notice, and the Defendant perused the authentic copy of the judgment of the first instance only during the period from December 15, 2017. The Defendant asserted that the Defendant’s appeal for subsequent completion was lawful, insofar as the Defendant filed an appeal for subsequent completion on December 22, 2017, which is within two weeks from the Defendant.

On November 19, 2017, the plaintiff filed a divorce lawsuit against the defendant and knew that the lawsuit was under way by public notice, but the defendant intentionally refused to serve the document to avoid divorce, so the defendant asserts that the appeal by public notice is unlawful.

B. Determination

The evidence presented by the Plaintiff alone is insufficient to recognize that the Defendant was aware of the progress of the instant lawsuit or intentionally refused to serve the documents. Rather, according to the overall purport of the Plaintiff’s evidence Nos. 39 and No. 11, the Plaintiff changed contact address of the Plaintiff and the Defendant and did not contact with the Defendant around December 4, 2016, and the Plaintiff submitted an application for divorce, etc. to this court on June 9, 2017, and issued an order to serve by public notice to the Defendant on July 20, 2017, on which the Plaintiff did not serve the Defendant. The Defendant was dispatched to ○○○ from April 3, 2017 to October 23, 2017 and served therein, and the first instance court ordered the Defendant to serve by public notice on November 28, 2017, and notified the Defendant of the content of the judgment to the Defendant on December 21, 2017.

According to the above facts, it is reasonable to view that the defendant was aware that the lawsuit in this case was filed and sentenced to the first instance judgment only when he was served with the certification of contents from the plaintiff around December 14, 2017. Thus, the defendant could not be able to observe the period of appeal because he was unaware of the fact that the lawsuit in this case was pending due to a cause not attributable to himself. Accordingly, the appeal in this case was lawful within two weeks from the time when the defendant became aware of the judgment of the first instance court.

2. Facts of recognition;

The principal lawsuit and counterclaim shall also be deemed to have been filed.

A. The plaintiff and the defendant are legally married couple who completed the marriage report on February 27, 2008, and have minor case principal under the chain.

B. On November 29, 2010, the Plaintiff obtained a credit loan of KRW 10 million from △△△△△△△, without any connection with the Defendant, and lent the full amount of the principal and interest of △△△△△△△△ on March 1, 201. Nevertheless, the Plaintiff borrowed KRW 15 million from △△△△△△△△△△△△△△ on February 15, 201 and borrowed the loan to △△△△△△△△△△△△△△. The Defendant was dissatisfied with the Plaintiff’s frequent loan due to the Plaintiff’s frequent loan, and the Defendant frequently disputed with the Plaintiff. On October 27, 201 and June 3, 2011, the Defendant lent KRW 23.5 million in total over three times to △△△△△△△△△△△△, the Plaintiff’s partner, but the Defendant did not pay the remainder of the loan to the Plaintiff or the Defendant did not pay the remainder of the loan.

D. The Plaintiff, who was married with the Defendant from around 2008 to around 2017, continued to receive treatment due to depression, anxiety, and depression, and was given a couple’s counseling around September 2012.

E. On June 2014, the Plaintiff began to reside in the room room located in the place where the principal of the case was sent back to the Plaintiff, and the Plaintiff was a director with the principal of the case on February 25, 2015, who was employed by the Plaintiff as a member of the staff of the ▽▽▽△△△△ who was operated by the Plaintiff’s dynamics. Since then, the Plaintiff and the Defendant continued to be dismissed.

F. On June 25, 2015, the Plaintiff sent two e-mail, including sending two times an e-mail containing the following: “I wish to do so even if I want to do so even if I want to do so even if I want to do so even if I want to do so,” and “I want to report even on June 28, 2015.”

G. Even after the separation, the Defendant made a speech to the effect that the Plaintiff flicks, such as informing another male, or criticizes the Plaintiff to the principal of the case, and the Defendant made a public announcement of his SNS to the effect that the Plaintiff flicks the Plaintiff.

H. Meanwhile, without the Plaintiff’s consent, the Defendant read not only the e-mail sent by the Plaintiff by hackinging the Plaintiff’s e-mail but also the e-mail sent by the Plaintiff, and submitted it to this court as evidence.

【Ground of recognition】 Each entry of evidence Nos. 8, 9, 19, 20, 4 through 8, 10 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

3. Determination on the principal lawsuit and counterclaim divorce and claim of consolation money

A. In light of various circumstances revealed in the pleadings of this case, the marriage between the plaintiff and the defendant was broken down, and this constitutes a cause for judicial divorce under Article 840 subparag. 6 of the Civil Act. Accordingly, all claims for divorce between the principal lawsuit and the counterclaim are justified.

B. Claim for consolation money for each principal lawsuit and counterclaim: The main responsibility for the failure of marriage lies in both parties, and the degree of the failure is equal, and therefore is without merit.

【Ground for judgment】

1) Parties’ assertion

The plaintiff, upon the plaintiff's request for divorce to the plaintiff at the time, made verbal abuse, such as demanding a divorce and going home, and made a fint and a converging the plaintiff from time to time, and did not respect the plaintiff as his spouse. The plaintiff did not properly look at the principal of this case, such as driving away from home. The plaintiff asserts that the marital life between the plaintiff and the defendant reached a failure due to the defendant's fault.

On the other hand, the defendant asserts that the marital life between the plaintiff and the defendant has reached a failure due to the plaintiff's fault since it was difficult for the plaintiff to make home economy by receiving a high interest rate loan without the defendant, and another male and female.

2) Determination

피고와 상의 없이 거액을 대출받아 동생에게 빌려준 원고의 행위에 잘못은 있으나, 이를 빌미로 원고나 그 가족을 비난하는 피고의 태도 역시 배우자로서 적절하지 못한 모습이다. 또한 비록 별거 중이기는 하나 원고가 배우자가 있음에도 에게 호감을 표시한 행위 역시 잘못되었으나, 한편 이는 원고의 일방적인 구애였을 뿐 나아가 원고와 ◇ 사이에 부정행위까지 있었다고 보기 어려움에도 이를 이유로 원고를 공개적으로 비난하거나 조롱하며, 원고의 이메일까지 해킹 하면서 원고의 인격과 사생활을 존중하지 않는 피고의 행위에도 잘못이 있다. 따라서 원고의 피고의 혼인관계는 원고와 피고 중 어느 일방에게 혼인관계 파탄의 주된 책임이 있다고 볼 수 없으므로, 이를 전제로 한 원고의 본소 위자료 청구와 피고의 반소 위자료 청구는 모두 이유 없다. 4. 친권자 및 양육자의 지정, 양육비, 면접교섭에 관한 판단

A. In full view of all the circumstances shown in the argument of this case including the result of the court's request for family investigation such as the fact that the plaintiff is bringing up the principal of this case until now, the person in parental authority and the custodian of the principal of this case, the circumstance of marriage and failure of the plaintiff and the defendant, the friendly density with the principal of this case, the age of the principal of this case, the custody status up to now, and the intention of the parties

(b) Child support;

Since the Defendant, as his father, is responsible for fostering the principal of this case together with the Plaintiff, the Plaintiff is obligated to pay the child support for the principal of this case. Furthermore, in full view of the amount of the child support to be borne by the Defendant, the Defendant is obliged to pay the Plaintiff the child support for the principal of this case, including health class, the age and status of the principal of this case, occupation and income of the Plaintiff and the Defendant, the economic situation of the principal of this case after the Plaintiff living separately, the period during which the Plaintiff brought up the principal of this case, and the amount paid by the Defendant to the Plaintiff during his stay separately (an amount of about five times from January to March of the same year, 2016) and the amount of the child support to be paid to the other party in lump sum may be contrary to the principle of good faith or the principle of equity. The Defendant has a right to have the child support for the principal of this case to be borne by the Defendant until May 2019; the Defendant has a right to have the child support for the principal of this case, including the child support of this case, one’s age and the parties.

taking into account all the circumstances shown in the argument of this case, including the result of reply to the request for family investigation;

It is reasonable to set visitation rights as stated in Paragraph 3 of this Article for the emotional stability and welfare of the principals of this case.

5. Conclusion

Therefore, the plaintiff's claim for divorce against the principal lawsuit and the defendant's claim for counterclaim divorce against the principal lawsuit shall be accepted for each reason, and the claim for consolation money and counterclaim consolation money shall be dismissed for each reason, and the designation of a person with parental authority and a person with custody, child support, and visitation right shall be determined as above. The judgment of the court of first instance, which has different conclusions, is unfair within its scope. As such, the judgment of the court of first instance, which has expanded in this court, accepted the plaintiff's claim for principal lawsuit, and the defendant's counterclaim raised to this court, and revoked or altered the relevant part, but all the plaintiff's remaining

The presiding judge shall be appointed from among the judges;

Judge Muma decoration

Judges Dognaia