2017Meu12552 Divorce and consolation money, etc.

Plaintiff

Law Firm Nelim, Counsel for the defendant-appellant

Yang Young-young et al., Counsel for the defendant

Defendant

Law Firm Seo-woo et al., Counsel for the defendant

[Defendant-Appellant] Man-Seo-An et al.

Seoul High Court Decision 2016Reu2226 Decided July 11, 2017

February 4, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Whether international jurisdiction exists in a family case;

A. Key issue

The Plaintiff filed a claim for divorce against the Defendant on the ground that the Defendant stayed in the Republic of Korea, not Canada, which is a nationality state, and left the Republic of Korea for more than one year, and abandoned the Plaintiff in bad faith, and caused mental suffering, such as deceiving the previous marital relationship and the use of property, and accordingly, filed a claim for consolation money and division of property. The lower court accepted the Plaintiff’s divorce claim on the premise that the court has jurisdiction over the Republic of Korea, and dismissed the claim for consolation money, but the claim for consolation money was dismissed. The Defendant asserts that it is reasonable to determine this case in the Canadian court and

The main issue of this case is whether a court of the Republic of Korea has international jurisdiction in this case, in which both the nationality and domicile of the plaintiff and the defendant are Canada.

B. Criteria for determining international jurisdiction in family cases

Article 2(1) of the Private International Act provides, “The court shall have the international jurisdiction in the case where the party concerned or the case in dispute is substantially related to the Republic of Korea. In this case, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction in determining the existence of substantive relations.” “Substantial relation” means that the court of the Republic of Korea is related to the party concerned or the case in dispute to the extent that it justify the exercise of jurisdiction by the court of the Republic of

reasonable principles consistent with the ideology of the allocation of international jurisdiction, such as equity, appropriateness, prompt and economy, etc. of the parties. Specifically, courts such as the appropriateness, speediness, efficiency and effectiveness of judgments, as well as personal interests, such as equity, convenience, predictability, etc. of the parties.

In addition, the State’s interests should also be taken into account. Determination of which interest among the interests in various international jurisdiction needs to be based on a reasonable determination of the existence of substantial relevance in each individual case (see Supreme Court Decisions 2002Da59788, Jan. 27, 2005; 2006Da71908, May 29, 2008; 2006Da71908, 71915, May 29, 2008; 2016Da33752, Jun. 13, 2019).

Article 2(2) of the Private International Act provides, “The court shall determine the existence of international jurisdiction, taking into account the provisions of the jurisdiction of domestic law, and shall take into account the special nature of international jurisdiction in light of the purport of the provision of paragraph (1).” Therefore, when determining international jurisdiction, the provisions of jurisdiction of domestic law shall be the most basic standard for determining international jurisdiction, but it may be reasonably revised to conform to the ideology of allocation of international jurisdiction, taking into account the legal nature of the relevant case and other individual and specific circumstances (see Supreme Court Decision 2016Da

Article 2 of the Act on Private International Law also applies to family cases.

If the court of the Republic of Korea has jurisdiction over a family case, the Republic of Korea has a substantial relationship with the party to the case or the dispute (see, e.g., Supreme Court Decision 2013Meu1196, May 16, 2014). However, unlike a general civil case, the family case has a significant impact on the basic discussion of social life as a case concerning the status of family members and relatives who are the foundation of community life, or property, rights, rights, and other legal relations closely related to the status relationship, as well as the guarantee of the defendant's right to defense, and also has public value such as the appropriateness and efficiency of the trial on the relevant issue, protection of the party's legitimate interest, family system and social order maintenance. Therefore, the existence of a "actual relation" in a family case needs to be determined not only under the jurisdiction of domestic law, but also considering the nationality, address or residence of the party, the place where the party's right to raise children arises, the place where the party's children lives is at issue, the need to interpret the case or the applicable law of the case in question.

The Family Litigation Act shall, in principle, have jurisdiction over a family litigation by the family court in the location of a defendant’s general forum (Article 13(1)), and special provisions on jurisdiction over a marriage lawsuit (Article 22) exist. According to the above, when a married couple has a general forum within the jurisdiction of the same family court, the said family court, where a married couple has a general forum within the jurisdiction of the family court having the same domicile, and where a married couple has a general forum within the jurisdiction of the said family court, the said family court shall have exclusive jurisdiction, and where not falling under such general forum, the said family court shall be the competent court in the location where the other party’s general forum is located (Article 46). The family court in the location of the place where the other party’s general forum is located shall have jurisdiction over a claim for a judicial divorce (Article 46). Where the same factual basis is based on the same factual basis or the propriety of one claim becomes a premise for a different claim, a lawsuit may be filed in one lawsuit, and where a family litigation case and a family non-litigation case are pending in another family court, the court shall ensure the fairness of the defendant’s and the parties’s.

In light of the provisions of these domestic laws, even in a case involving a marital relationship such as judicial divorce, where there is no nationality or domicile of the parties in the Republic of Korea and it is difficult to recognize jurisdiction under the provisions of domestic law with a Korean court, the facts constituting the principal cause of the claim for divorce have been formed in the Republic of Korea (such as where the father’s nationality or address is in a foreign country but the spouse stays in the Republic of Korea for a considerable period of time and thus the spouse’s separate status is formed), and in a case involving a case involving division of property claimed together with divorce, there is a high room for recognizing the substantive relationship between the Republic of Korea and the relevant case in terms of predictability, remedy of rights, convenience of the relevant issues, and effectiveness of the judgment.

Furthermore, if the defendant lawfully served a duplicate of the complaint and actually actively responded to the complaint, such circumstance may be positively considered to recognize jurisdiction with the court of the Republic of Korea (see Supreme Court Decision 2005Meu884, May 26, 2006).

International jurisdiction is not exclusive jurisdiction, but it may exist concurrently. The jurisdiction of the court of the Republic of Korea shall not be readily denied solely on the ground that the jurisdiction of the court of another country may be recognized (see Supreme Court Decision 2016Da33752, supra).

C. Facts

According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) The Plaintiff and the Defendant filed a marriage report on July 2, 2013, and resided in Qubec State, Canada.

(2) The Defendant resided in the Republic of Korea from November 11, 2013 to December 17, 2013; from April 2, 2014 to May 2, 2014; from October 1, 2014 to October 25, 2014; from November 5, 2014 to May 22, 2015; however, from May 22, 2015 to the Republic of Korea, the Defendant resided in the Republic of Korea at a place other than the domicile of the Plaintiff and the Defendant; and after entering the Republic of Korea again on August 11, 2015, the Defendant served the Nonparty’s domicile to the Seoul Immigration Office (the Nonparty’s domicile) and the Nonparty’s domicile to the domicile of the Seoul Immigration Office (the Nonparty Nonparty 1 and the Nonparty 2) as his husband at the time of the issuance of the instant certificate of sojourn to the domestic domicile of the Defendant 1, 2013.

On December 7, 2014, the Plaintiff entered the Republic of Korea on December 7, 2014 and entered the Republic of Korea with the Defendant’s words, women, Nonparty, etc., and returned to Canada on January 19, 2015.

(3) On March 19, 2015, the Plaintiff filed a lawsuit claiming a divorce against the Defendant with the Seoul Family Court. The reason for divorce claimed by the Plaintiff was when the spouse under Article 840 of the Civil Code of the Republic of Korea, "if the spouse abandons another spouse in bad faith (Article 840)" (Article 84 of the Civil Code, and "if there is any other serious reason for making it difficult to continue the marriage" (Article 8 of the Canadian Divorce Act, and later, the reason for the claim for divorce was changed to "if there is a physical or mental suffering as much as the other spouse could not live together."

(4) On May 19, 2015, the Defendant, via his/her legal representative, filed an application for the transfer of the instant case to the Cheongyang Branch of the District Court. The Seoul Family Court transferred the instant case to the Cheongyang Branch of the District Court on June 12, 2015.

(5) On May 31, 2016, the court of first instance (the appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s order) presented its opinion on whether the Plaintiff and the Defendant have international jurisdiction over the instant case at a Korean court. The Defendant did not assert international jurisdiction while disputing the existence of grounds for divorce and the subject of division of property.

(6) After marriage with the Plaintiff, the Defendant purchased the apartment house located in Busan (hereinafter referred to as the “ apartment house located in Busan”) from the Defendant’s mother and purchased the automobile in the name of the Nonparty. However, in the instant lawsuit, the Defendant asserted that the Plaintiff retired from the Plaintiff, and that the Plaintiff purchased the apartment house located in Busan with the funds provided by the Plaintiff to live together with the Plaintiff, which was returned to the Republic of Korea. (7) On May 15, 2015, the Plaintiff filed a provisional attachment for the apartment house located in Busan, and the Defendant and the Nonparty filed a complaint for fraud and evasion of compulsory execution regarding the purchase of the apartment house located in Busan and the registration of the establishment of the right to lease on a deposit basis, etc.

D. Examining the above facts in light of the legal principles as seen above, whether the courts of the Republic of Korea recognized international jurisdiction in this case or not, in light of the above facts, the parties to the instant case or the case in dispute are substantially related to the Republic of Korea, and thus, the courts of the Republic of Korea have the international jurisdiction

(1) Prior to the filing of the instant lawsuit, the Defendant reported the address of Goyang-si residing in the Republic of Korea prior to the filing of the instant lawsuit, and acquired real estate and the vehicle in the Republic of Korea and owned and used it. At the time of filing the instant lawsuit, the Defendant claimed the said address as his residence and applied for transfer, etc.

(2) The part mainly disputed between the Plaintiff and the Defendant in this case is whether the Defendant suffered mental pain to the Plaintiff due to malicious abandonment, deception, etc. in relation to the grounds for divorce, and whether the Defendant’s property existing in the Republic of Korea is subject to division of property. Accordingly, the dispute in this case is practically closely related to the Republic of Korea.

(3) The Plaintiff and the Defendant are currently holding the current Canadian nationality, but both of them are having relations with the Republic of Korea. In particular, the Defendant purchased real estate located in the Republic of Korea from time to time after marriage with the Plaintiff and had stayed in the Republic of Korea, and there seems to be no big difficulty in litigation in the Republic of Korea as they reside in the Republic of Korea. In addition, in the situation where the Plaintiff asserted the division of property against the apartment in Busan, which is located in the Republic of Korea, and provisionally seized the relevant real estate, the Plaintiff has practical benefits to be tried

(4) The Plaintiff, a Canadian national, clearly expresses his/her intent to have the Defendant decide on himself/herself to a Korean court. The Defendant also appointed an attorney in the Republic of Korea and responded to the case. The substantial pleadings and hearings on the merits have been conducted by the Korean court for a considerable period of time.

(5) It is difficult to view that the facts of the instant case can be proved through documentary evidence, such as most of the certificates of entry and departure, written contracts, and account transfer records, and thus, it is not always necessary to conduct on-the-spot investigations in Canada, and the filing of a lawsuit in the Republic of Korea cannot be deemed as significantly disadvantageous to the Defendant. On the other hand, if a lawsuit in the Republic of Korea should be deliberated only in the Canadian court by denying the international jurisdiction of the Republic of

(6) The governing law is a matter of whether it is appropriate to resolve a dispute in accordance with the order of a country’s substantive law, whereas the international jurisdiction is a matter of whether to recognize the jurisdiction to a court of a country in view of the party’s equity, propriety, speediness, economy, etc. of the dispute. This two principles are governed by different ideas. Even if the governing law of the legal relationship of this case is the Canada Divorce Act or the Canada Qu Qu Civil Code, such circumstance alone does not deny the substantial relationship between the lawsuit of this case and the Korean court.

(7) Since international jurisdiction is not exclusive jurisdiction but it may exist concurrently, even if jurisdiction is recognized in Canada with respect to the instant case, it cannot be a reason to deny jurisdiction of a court of the Republic of Korea.

(8) In short, the lower court did not err by misapprehending the legal doctrine on international jurisdiction, contrary to what is alleged in the grounds of appeal, and did not adversely affect the conclusion of the judgment on the premise that the court below acknowledged the international jurisdiction of the Republic of Korea on the instant case.

2. Whether there is a misapprehension of legal principles as to division of property

The lower court, in accordance with Articles 38(1) and 37 of the Korean Private International Act, determined the division subject and the value of the instant claim by applying the Civil Code of Canada Qubec, the home country of the Plaintiff and the Defendant, to the division of property and determined the division ratio and method.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the subject of division of property at the time of divorce, or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok