2015Dhap642 (Divorce, etc.) Divorce

2015Dhap659 (Counterclaims), divorce, etc.

KimA (************ 2***********)))

Busan Address

Busan District Court

Attorney Lee Do-young

HB (***************************))

Busan Address

Busan District Court

Law Firm Gyeong, Attorney Lee Jong-soo, Counsel for defendant

August 2015 8.20

October 8, 2015

1. The plaintiff (the counterclaim defendant) and the defendant (the counterclaim plaintiff) are divorced by the principal lawsuit and counterclaim.

2. Plaintiff (Counterclaim Defendant)’s claim of consolation money in its principal lawsuit and Defendant (Counterclaim Plaintiff)’s claim of consolation money in its counterclaim respectively.

3. Defendant (Counterclaim Plaintiff) pays to Plaintiff (Counterclaim Defendant) 62,00,000 won as division of property and 5% interest per annum from the day following this judgment became final and conclusive to the day of full payment.

4. Of the litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Main Action: (a) the Plaintiff (Counterclaim Defendant; hereinafter “Defendant”) shall pay 10,00,000 won as consolation money and 20% interest per annum to the Plaintiff (Counterclaim Defendant; hereinafter “Defendant”) at the rate of 169, 516, 731 won as division of property and 5% interest per annum from the day following the day of delivery of a copy of the complaint of this case to the day of full payment, to the day of full payment.

Counterclaim: (1) of this case and the plaintiff pay to the defendant 30,000,000 won with 5% interest per annum from the day following the delivery of a copy of the counterclaim of this case to the day of the judgment, and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. The Plaintiff and the Defendant completed the marriage report on July 20, 2005, and both the Defendant’s mother, Defendant’s son, Defendant’s son (19* Juvenile Life), and HaD (19* Juvenile Life).

B. After marriage, there was a complaint that the Plaintiff gave less living expenses to the Defendant, and the Defendant was dissatisfied with the complaint that the Plaintiff was unable to appropriately gather her mother, which led to frequent fireation between the Plaintiff and the Defendant. In that process, the Defendant thrown away goods to the Plaintiff or incidental visits to the Plaintiff.

C. Around 2008, when the relationship between the Plaintiff and the Defendant has deteriorated, the Plaintiff and the Defendant decided to be divided into parts, and the Plaintiff came to live together with his house.

D. The Plaintiff returned to his house again in around 2013 and was paid together with the Defendant and the Defendant’s mother. The Plaintiff, without the Defendant and the Defendant, brought up the Plaintiff’s son’s son’s son and son’s son, and brought up the Plaintiff to his house without the Defendant and the Defendant, causing conflicts with the Defendant. In addition, as the Defendant’s mother’s Dementia symptoms were serious, and the Plaintiff and the Defendant were frequently living from May 2014.

【Ground of recognition】 Each entry of Gap evidence Nos. 1 through 4, family investigation report by family investigation officers, the purport of the whole pleadings

2. Determination as to the claim for divorce and the claim for consolation money against each principal lawsuit and counterclaim

A. Claim for divorce of principal lawsuit and counterclaim: there are reasons under Article 840 subparagraph 6 of the Civil Act.

(b) Claim for consolation money for each principal lawsuit and counterclaim: None of the grounds therefor;

[Grounds for Determination]

(1) Recognition of the failure of marriage: Various circumstances taken into account, including the fact that the plaintiff and the defendant are living separately for a long time, that both the plaintiff and the defendant want to divorce, and that they seem unlikely to recover trust among themselves and continue their marital life.

(2) The liability for the failure of marriage is both parties.

The Plaintiff cited the Defendant’s assault and non-payment of living expenses as grounds for divorce, and the Defendant cited the Plaintiff’s breadth and unfair conduct against the Defendant and his mother.

In light of the fact that the plaintiff and the defendant repeated their own position and did not make every effort to resolve conflicts through verbal abuse and assault that may undermine the self-esteem of both parties in the process of marriage, and that the plaintiff and the defendant's marital relationship reached a failure due to the fault of both parties, and it is reasonable to see that the plaintiff and the defendant's marital relationship reached a failure due to the fault of both parties, even if there are cases where there are several situations facing which are impeding them in the marital life (see Supreme Court Decision 97Meu612, Feb. 12, 199).

In addition, the grounds for the dissolution of marriage asserted by the plaintiff and the defendant are insufficient to recognize the same facts only with the evidence submitted to this court, or that such facts were the main grounds for the dissolution of marriage, and thus, it is not acceptable to accept the grounds for the divorce of this case.

C. Sub-determination

Therefore, by means of the principal lawsuit and counterclaim, the plaintiff and the defendant are divorced, but all of the plaintiff's principal lawsuit and the defendant's counterclaim consolation money cannot be accepted.

3. Determination on the claim for division of property in the principal lawsuit

A. Details about the formation of the property;

1 ) 원고는 혼인기간 중 피고의 자녀들을 돌보고 피고 어머니를 모시고 살면서 틈틈 이 박스줍기 , 간병인 , 청소일 등을 하였고 , 피고는 1995 . 11 . 1 . 부터 현재까지 부산 * * * 청 * * 과에서 환경미화원으로 근무하고 있다 .

2) On April 15, 2005, the time of marriage with the plaintiff, the defendant purchased * Gu** Dong*** apartment*** Dong*** Dong****** head of Dong*** (hereinafter referred to as "the apartment of this case").

3) During the marriage period, the Defendant paid the Plaintiff the monthly living expenses of KRW 800,000 to KRW 1 million, and the Plaintiff and the Defendant formed the property as shown in the attached Form 1 List as the Defendant’s salary during the marriage period and continued the household as the Defendant’s salary.

[Ground of recognition] The statement Nos. 8 and 9 of Gap, the family investigation report by family investigation officers, Busan** * Results of the fact inquiry into Cheong, interesting country life insurance, Samsung Life Insurance, Busan Bank, and Life Insurance Association

(b) Property and value to be divided;

The details of the property in the attached Form 1 shall be as shown in the list.

C. Determination of the parties’ assertion on the property subject to division

The arguments and judgments of the parties in the annexed sheet 1 are as shown in the column of "party's assertion and judgment" and in the annexed sheet 2 non-recognized properties list, as shown in the column of "party's assertion and judgment."

(d) Ratio and method of division of property;

1) Division ratio: Plaintiff 20%, Defendant 80%

[Ground of determination] The process, period and reason for failure of marriage between the plaintiff and the defendant, and the defendant's stable income while serving as public officials; the defendant used a large amount of income as living expenses; the timing and reason for the acquisition of the apartment of this case; the ratio of the time of acquisition and circumstances of the apartment of this case; the ratio of the period of marriage during the defendant's service period (related to retirement money); the age of the plaintiff and the defendant; and the defendant's future income activities

2) The method of division of property: considering the name and form of the property to be divided, the grounds for acquisition and use of the property, the convenience of division, etc., the Defendant’s payment to the Plaintiff of the shortage of the amount to be reverted to the Plaintiff according to the above division ratio.

3) Property division amount to be paid by the Defendant to the Plaintiff: 62,00,000 won

【Calculation Form】

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

Total net property 346, 354, 721 won x 20% = 69,270, 944 won

(2) Amount under paragraph (1) after deducting the Plaintiff’s net property.

69, 270, 944 - 7, 321, 359 won = 61, 949, 585 won

[3] Division of property that the Defendant pays to the Plaintiff

2. The amount set forth in the above paragraph 62,00,000 won which is less than

E. Sub-determination

Therefore, the defendant is obligated to pay the plaintiff 62,00,000 won as division of property and damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from the day after the judgment became final to the day of full payment.

4. Conclusion

Therefore, the principal claim and counterclaim for divorce are accepted for the reasons, and the principal claim and counterclaim claim for consolation money are dismissed for each reason, and the principal claim and counterclaim are dismissed for each reason. It is so decided as per Disposition with respect to the property division claim in the principal lawsuit.

Judges Do-constition

Judges Kim Jin-jin

Judges Park Jong-hee