(영문) 부산가정법원 2018.7.12.선고 2016드합202407 판결

2. The Plaintiff (Counterclaim Defendant) pays 30,00,000 won as consolation money to the Defendant (Counterclaim Plaintiff) and 15% per annum from November 1, 2016 to July 12, 2018, and 25% per annum from the next day to the day of complete payment.

3. Plaintiff (Counterclaim Defendant)’s claim for divorce and consolation money against the principal lawsuit and Defendant (Counterclaim Plaintiff)’s claim against the remainder of the counterclaim is dismissed, respectively.

4. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 340,00,000 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.

5. The plaintiff (a counterclaim defendant) shall be designated as a person in parental authority and a custodian of the principal of the case.

6. The Defendant (Counterclaim Plaintiff) pays the Plaintiff (Counterclaim Defendant) KRW 1,400,00 per month from July 13, 2018 to June 25, 2021 as the child support of the principal of the case, and KRW 700,00 per month from the following day to December 1, 2024.

7. Of the litigation costs, 80% is borne by Plaintiff (Counterclaim Defendant) and the remainder is borne by Defendant (Counterclaim Plaintiff) respectively.

8. Paragraphs 2 and 6 can be provisionally executed.

Purport of claim

The principal lawsuit is divorced by the judgment of the court below and the judgment of the court below. The defendant shall pay to the plaintiff 50,000,000 won as consolation money, 15% per annum from the day after the day when the copy of the complaint of this case is served to the day of complete payment. The defendant shall pay to the plaintiff 1,109, 787, 571 won as division of property, and 5% per annum from the day following the day when the judgment of the court below becomes final to the day of complete payment. The defendant shall pay to the plaintiff 0,00 won as the child support of the person of this case to October 2, 201, 100, 100, 10, 100, 10, 10, 10, 10, 20, 10, 20, 10, 20, 10, 20, 20, 20, 10, 20, 20

Counterclaim: Paragraph 1 of this Article and Paragraph 1 of this Article provide the Defendant with a 70,00,000 won as consolation money, and 15% interest per annum from the day following the day of delivery of a copy of the counterclaim of this case to the day of full payment. The Plaintiff shall pay the Defendant with the interest calculated at the rate of 15% per annum from the day following the day of this decision to the day of full payment. The Plaintiff shall designate the Defendant as the person with parental authority and guardian of the principal of this case. From November 1, 2016 to the day when the principal of this case reaches the age of 19 years each, the Plaintiff shall pay 1,00,000 won per capita of the principal of this case to the day of full payment.

Reasons

A principal lawsuit and a counterclaim shall also be deemed to be a counterclaim.

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

A. Facts of recognition

1) The plaintiff and the defendant are legally married couple who completed the marriage report on December 4, 2001, and they listen to the principal of the case under the sleep.

2) The Plaintiff becomes aware of 00 leap around 2015, and the name of the Defendant he operated around September 11, 2015.

It did not see at any time the mind of 00 and her body in the vehicle? They expressed her body with her body, her own body, her own body, her inside her body, and her talked with her similar behavior while talking about her talks, such as her own body, her to her own body, her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her

3) Around May 2016, the Defendant observed the Plaintiff’s accompanying with le00 and re-suspected the relationship between two parties. On June 22, 2016, the Plaintiff had sexual intercourse with le00 on the said vehicle, and the Defendant became aware of the fact through a vehicle black file.

4) On June 28, 2016, the Plaintiff: (a) moved to the principal of the case on June 28, 2016; and (b) was living separately with the Defendant thereafter.

5) On June 28, 2016, the Plaintiff filed the instant principal lawsuit, and the Defendant filed a counterclaim on October 28, 2016, respectively.

[Ground of recognition] Gap evidence Nos. 1 through 4 (each number includes numbers; hereinafter the same shall apply), Eul evidence Nos. 5 through 8, and 10, family affairs investigator's report, and the purport of the whole pleadings

B. Determination

1) Counterclaim divorce claim: there are reasons under Article 840(1) and (6) of the Civil Act.

2) Claim for solatium consolation money: 30,000,000 won

3) Claim for divorce and consolation money against the principal lawsuit: None of the grounds therefor.

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances such as the fact that both the plaintiff and the defendant desire to divorce, the loss of trust in each other, and the possibility of continuing the marriage life seems to exist in the future.

② The Plaintiff is mainly responsible for failure in the marriage: (a) the Plaintiff lost ties and trust between husband and wife by repeatedly committing an unlawful act with leapment00; (b) however, the Plaintiff unilaterally set up the Plaintiff’s endeavor to recover the Defendant’s trust without any reasonable means; and (c) the Plaintiff’s denial of unlawful act up to the instant court, and is consistent with the rationale for the Plaintiff.

(1) The Plaintiff asserted that the Defendant’s refusal of marital relations, family affairs, and child care, disregarding the Plaintiff, etc. were the main cause of the marriage of this case, but it is not sufficient to recognize the assertion as to only the evidence submitted to this court, or it was the main cause of the marriage dissolution in itself. Thus, the Plaintiff’s assertion cannot be seen as being difficult to accept).

③ The duty to pay consolation money and amount: The Plaintiff is obligated to pay consolation money for mental distress sustained by the Defendant due to the failure of the marriage. The amount is set at KRW 30,00,00,000, taking into account various circumstances shown in the pleadings, such as the period of confusion between the Plaintiff and the Defendant, the background leading up to the dissolution of the marriage, the period, mode and degree of the Plaintiff’s misconduct, the period, mode and degree of the Plaintiff’s misconduct, circumstances after the misconduct, the age of the Plaintiff and the Defendant, occupation and economic power, etc.

C. Sub-determination

Therefore, the plaintiff and the defendant are divorced by counterclaim, and the plaintiff is obligated to pay to the defendant consolation money of 30,00,000 won as consolation money and the marriage relation is broken down, and as the defendant seeks, 5% per annum under the Civil Act from November 1, 2016 to July 12, 2018, which is the day following the delivery of a copy of the counterclaim of this case, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

2. Determination as to each claim for division of property against the principal lawsuit and counterclaim

(a) Details about the formation and maintenance of property;

1) The Plaintiff was in exclusive charge of household affairs and raising children during the marriage period. Around 2003 with the Defendant’s parent’s source of funds, the Plaintiff was running by means of multiplying around 2003, and the Internet distribution business around 2012, but retired from reporting two losses.

2) The Defendant from around 1999 to the advanced0 corporation, and from around 2002 to the three names of Co., Ltd., the Defendant’s father was employed from around 00 to 00, and from around 2004, from around 004 to 00, respectively.

3) On April 26, 201, the Plaintiff and the Defendant received monetary support from the Defendant’s parents, and purchased apartment houses located in the Geum-gu, Busan, and completed the registration of ownership transfer in the Plaintiff’s mother 00 name, and lived together at a separate place until they were living.

4) On June 10, 2014, the Plaintiff and the Defendant received monetary support from the Defendant’s parents, purchased the land located in Busan-dong and the studio building on the land located in Busan-dong and its ground, and completed the registration of co-ownership in the name of the Plaintiff and the Plaintiff’s mother. After completing the registration of co-ownership in the name of 00, the Plaintiff leased the above studio. On February 10, 2017, the Plaintiff sold the above studio and the studio to KRW 1,740,000,000.

5) On April 2015, the Plaintiff and the Defendant received monetary support from the Defendant’s parents, acquired 1/5 shares of the land located in the Northern-dong in Busan-gu and the studio building on its ground under the name of the Defendant, and paid 5,00,000 won per month among the profits therefrom to the Defendant’s parents.

[Reasons for Recognition] The evidence mentioned above, evidence Nos. 30-1, 31, Eul evidence No. 56, and the purport of the whole pleadings

(b) Property and value to be divided;

1) Property subject to division: Attached Table 1, as stated in the “Attachment 1” list (the object and value of property division shall be determined as of the date of closing of argument in this case; Provided, That if consumption or concealment, as money, is less than the standard point of time, there is a possibility of overlapping, it shall be reasonable to deem that the marriage was extinguished as of the Plaintiff’s principal litigation date at the time of separation of the Plaintiff and the Defendant, as of June 28, 2016, by presumption that the amount of such money has been existing, and the subject and value of property division shall be determined by presumption that the amount of money has been in existence. However, if the Defendant makes a statement by agreement with the Plaintiff, the value thereof shall be followed).

2) The value of the property to be divided;

A) Plaintiff’s net property: 751, 287, 819 won

B) Defendant’s net property: 1,989, 736, 470 won

C) The aggregate of the net property of Won and the defendant: 2,741,024,289 won

[Ground of recognition] Gap evidence Nos. 27, 29, 30, 31, 39, Eul evidence Nos. 15, 56, 59 through 62, 71, and each of the statements Nos. 15, 56, 59 through 62, and 71, the court's national bank of this court, Korean bank, Busan Bank, and Samsung Life Insurance, the results of each order to submit financial transaction information for Samsung Life Insurance, family investigation report, and the purport

C. Judgment on the parties’ assertion

Attached Table 1 is as shown in the column of each party's assertion and judgment in the annexed Table 1's Schedule of Property Specifications and Attached Table 2's Non-Recognized Property Statement.

(d) Ratio and method of division of property;

1) Division ratio: Plaintiff 15%, Defendant 85%

[Ground of determination] The degree of contribution of the Plaintiff and the Defendant to the formation and maintenance of the property subject to division as seen above, property status prior to marriage, the process, duration, and distress of marital life, the age of the Plaintiff and the Defendant, occupation and income activity, in particular, the process of acquisition of real estate recognized as the Defendant’s active property, etc.

2) The method of division of property: taking into account the parties’ intentions, the ownership, the process of acquisition and maintenance of the property subject to division as seen earlier, and the circumstances revealed in the pleadings of the instant case, the part of the amount to be reverted to the defendant according to the above ratio of division shall be determined to be paid to the defendant with money.

3) Property division amount to be paid by the Plaintiff to the Defendant: 340,000,000 won

【Calculation Form】

① The Defendant’s share according to the division ratio of property among the Plaintiff and Defendant’s net property

Total net property 2, 741, 024, 289 won x 85% = 2, 329, 870, and 645 won (at least KRW 2,000)

(2) The amount under paragraph (1) minus the defendant's net property.

340, 134, 175 won ( = 2,329, 870, 645 won - 1,989, 736, 470 won)

③ Division of property that the Plaintiff pays to the Defendant

② The amount under the above paragraph is 340,000,000 won in a little amount under the above paragraph.

E. Sub-determination

Therefore, the Plaintiff is obligated to pay to the Defendant 340,00,000 won as division of property and 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of full payment.

3. Determination as to the designation of a person with parental authority or a custodian and child support

(a) Designation of a person with parental authority and a custodian;

In full view of all the circumstances revealed in the arguments of this case including the plaintiff and the defendant's marital life and failure failure situation, the kind density with the principal of this case, the age and present situation of custody of the principal of this case, and the intention of the parties, it is reasonable to designate the plaintiff as the person with parental authority and the custodian of the principal of this case.

(b) Child support;

1) Occurrence of obligation to pay child support

The defendant, as a father of the principal of this case, is responsible for fostering the principal of this case together with the plaintiff, and therefore is obligated to pay the child support to the plaintiff.

2) Amount of child support to be paid by the Defendant

From July 13, 2018, the day following the day on which the Defendant rendered this judgment to the Plaintiff, the principal of the case shall be determined to pay the Plaintiff KRW 700,000 per month per head of the case principal from July 13, 2018 until the day before the principal of the case reaches each gender year.

[Calculation Basis] The age and parenting status of the principal of the case, the age of the original and the defendant, occupation and income, re-industrial and livelihood, the intention of the parties, etc.

4. Conclusion

Therefore, the defendant's counterclaim divorce claim is accepted as reasonable, and the claim for consolation money is accepted within the extent of the above recognition, and the remaining counterclaim claim for consolation money and the plaintiff's principal lawsuit divorce and consolation money claim are dismissed as it is without merit. It is so decided as per Disposition with regard to division of property, designation of person with parental authority, and child support.

Judges

Judges Kim Jong-soo

Judges Cho Jae-sung

Judges Lee Jae-chul

참조조문

-민법

-민법 제840조

-소송촉진 등에 관한 특례법

유사 판례

-부산가정법원 2018.8.23.선고 2017드단8292 판결

-부산가정법원 2015.3.24.선고 2014드단9249 판결

-부산가정법원 2018.10.11.선고 2017드합201296 판결

-부산가정법원 2016.2.4.선고 2015르20005 판결

-부산가정법원 2016.2.16.선고 2014드단7717 판결