In a case where Party A and Party B, who are the legal married couple, drafted a written agreement on consolation money and division of property, and reported divorce, and Party B sought a payment of consolation money and division of property again against Party B by asserting that the marriage was broken down due to the cause attributable to Party B’s assault, etc., the case holding that Party B’s claim for consolation money is unlawful on the ground that it violates the father’s lawsuit agreement, and is in violation of the benefit of protection of rights, and thus,

In a case where Party A and Party B, who are the legal couple, prepared a written agreement on consolation money and division of property, and reported divorce, and Party B again claimed for the payment of consolation money and division of property against Party B by asserting that the marriage was broken down due to the cause attributable to Party B’s assault, etc., the case holding that Party A’s claim for consolation money is unlawful on the ground that Party B violated Party B’s husband’s non-litigation agreement, and there is no benefit in protection of rights, and that there is no benefit in protection of rights, and in light of the developments leading up to divorce and the text of the agreement, etc., Party A and Party were paid the amount of division of property to Party B at the time of the preparation of the agreement, and if Party B transferred the deposit money, facilities, automobiles, etc. to Party B, it appears that there was an agreement on the division of property, which would not seek any more division of property, and since the agreement was concluded on the condition that Party B would not seek any more division of property.

Articles 839-2 and 843 of the Civil Act

Plaintiff (Attorney Yu-ju, Counsel for plaintiff-appellant)

Defendant (Law Firm Cheongn, Attorneys Lee Dong-jin et al., Counsel for the defendant-appellant)

May 11, 2017

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50,000,000 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the decision of this case, and 15% interest per annum from the next day to the day of full payment, with 2,00,000,000 won as property division, and 5% interest per annum from the day following the day of this decision to the day of full payment.

1. Facts of recognition;

A. On August 19, 192, the Plaintiff and the Defendant reported a marriage on August 19, 192, and agreed to divorce due to differences in the middle, value, character, and means of living, etc., while continuing the legal marital relationship. On September 24, 2013, the Plaintiff and the Defendant drafted “Agreement on Divorce” (hereinafter “instant Agreement”).

1. The Plaintiff and the Defendant’s above △△△△△△△ Group’s agreement on September 24, 2013. The Plaintiff and the Defendant did not enter the Plaintiff’s right to 3 billion won for all the above corporeal movables under the name of the Defendant’s 5th anniversary of the above 6th anniversary of the agreement. The Plaintiff’s agreement on the sale of the said corporeal movables by the Busan Family Court and the right to visit the said 3th anniversary of the agreement. The Defendant agreed not to claim consolation money and property division: (a) the Plaintiff and the Defendant would not be entitled to KRW 50 million for all the 3rd anniversary of the agreement; (b) the Plaintiff’s agreement on the sale of the said corporeal movables by the said 4th anniversary of the agreement; and (c) the Defendant would not be entitled to KRW 12,500,000,000 and KRW 20,000,000 before December 31, 2015.

B. On September 24, 2013, the Defendant paid KRW 150 million to the Plaintiff. On the same day, according to the agreement under Article 4(4) A of the instant agreement, the Defendant prepared a debt settlement agreement (quasi-loan) stating that “The amount to be paid by the Defendant to the Plaintiff in the future is KRW 325 million, and KRW 125 million until December 31, 2014, KRW 100 million until December 31, 2015, KRW 100 million until December 31, 2015, KRW 100 million, and KRW 100 million until December 31, 2016.”

C. Since then, the Plaintiff and the Defendant confirmed the intention of divorce by agreement with Busan Family Court No. 2013No. 6566, and completed the report of divorce by agreement on December 30, 2013.

D. The Plaintiff did not pay KRW 125 million to the Defendant on December 31, 2014 (hereinafter “the first payment date”). Based on the instant notarial deed, the Plaintiff applied for a compulsory auction for the instant notarial deed with respect to the △△△△△△ apartment, Busan ( Address 2 omitted) Dong-dong, Busan (hereinafter “instant apartment”). On March 2, 2015, the Plaintiff was issued a decision to commence compulsory sale as Busan District Court Decision 2015ta517, Busan District Court Decision 2015Ma545, March 3, 2015, and was issued a seizure and collection order against the Defendant’s bank account with the Busan District Court Decision 2015Ma5455.

E. Accordingly, on February 16, 2015, the Defendant deposited the deposit for repayment of KRW 125 million with the Busan District Court Decision 1802,000,000,000 won, and filed a lawsuit for objection to the claim on March 4, 2015. After recovering the deposit money, the Plaintiff was sentenced to a favorable judgment of the Plaintiff on May 13, 2015 and became final and conclusive at that time, and the compulsory auction of the said real estate was revoked.

F. On August 10, 2015, the Plaintiff filed the instant lawsuit claiming that the instant agreement is null and void, and the Defendant deposited KRW 100 million (Seoul District Court Decision 2015No. 9967) in December 24, 2015 with the deposited person as the Plaintiff on the ground of the Plaintiff’s refusal to receive payment, and KRW 100 million (Seoul District Court Decision 2016No. 2002) in December 30, 2016, respectively.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 10 evidence, Eul evidence 1 through 5, 7, the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

A. The parties' assertion

The Plaintiff asserts that the marriage of the Plaintiff and the Defendant was broken down due to reasons attributable to the Defendant’s assault, etc., and sought payment of consolation money of KRW 50 million and property division amount of KRW 2 billion to the Defendant. Accordingly, the Defendant asserted that the Plaintiff’s claim is unlawful since the agreement on consolation money and property division had already been concluded between the Plaintiff

B. Determination

(1) Judgment on the claim for consolation money

According to the above facts, the Plaintiff agreed with the Defendant that the Defendant would not claim consolation money on the day during the marriage period after receiving a division of property from the Defendant. This can be seen as an agreement to bring a lawsuit against the portion of consolation money. The claim for consolation money in the lawsuit of this case is contrary to the above father-committee agreement, and is unlawful as there is no benefit of protecting rights.

(2) Determination on the claim for division of property

The Family Court’s judgment on division of property upon a divorce party’s claim is limited to a case where there is no agreement between the parties on the division of property or it is impossible to reach an agreement on the division of property (Article 839-2(2) of the Civil Act). Thus, if an agreement on the division of property has already been reached between the parties, there is no benefit in the claim even if there is a claim on division of property by one of the parties (see Supreme Court Decision 93Meu409 delivered on December 28,

In light of the following: (a) the Plaintiff and the Defendant agreed on the divorce between the Plaintiff and the Defendant, and the text and text of the instant agreement and the notarial deed, it is reasonable to deem that there was an agreement on the division of property, which the Plaintiff would not seek any more division of property, if the Plaintiff transferred the lease deposit, facilities, automobiles, etc. to the Plaintiff at the time of the preparation of the instant agreement, and that there was a agreement on the division of property, which the Plaintiff would not seek any more division of property. The said agreement on the division of property, as the declaration of intention on the divorce, was made on the condition of the agreement, and the conditions were fulfilled after the agreement between the Plaintiff and the Defendant. Therefore, the claim for division of

(3) Judgment on the Plaintiff’s assertion of invalidation

As to this, the Plaintiff asserted that the above agreement was null and void pursuant to Paragraph 6 of the instant agreement because the Defendant failed to perform his/her duty under the instant agreement, and thus, the Defendant did not pay KRW 125 million to the Plaintiff by the first payment date. However, as seen earlier, the Defendant prepared and executed the instant notarial deed that can be immediately subject to compulsory execution as to cash division. In fact, the Plaintiff started compulsory execution based on the instant notarial deed as the Defendant did the first payment date, and the Plaintiff did not dispute more actively in the relevant lawsuit. In full view of the fact that the Plaintiff received KRW 125 million from the Defendant’s deposit, and the Defendant paid the entire amount of property division after the payment, it is reasonable to view that the Defendant fulfilled its duty under the instant agreement. Accordingly, the Plaintiff’s assertion is not accepted.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)