(영문) 부산가정법원 2020.9.17.선고 2020드합200866 판결

The plaintiff shall be divorced with the defendant. The defendant shall pay to the plaintiff 1,00,000 won as consolation money and 12% interest per annum from the day following the day of delivery of a copy of the complaint of this case to the day of complete payment. With respect to each one-half share of each real estate in the separate sheet, the registration procedure for transfer of ownership based on the property division with the fixed date of this judgment shall be completed, and 47,516,000 won as a property division shall be paid with 5% interest per annum from the day following the day of this judgment to the day of full payment.

Reasons

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report on 1981 and have two adult children.

B. From the time of marriage, the Plaintiff was doubtful of the Defendant’s female relationship, and there was a lot of conflict during the marriage period.

C. The Plaintiff took drugs prescribed in the spirit two times in 1987 and 1989 due to medical symptoms.

D. On August 2017, the Plaintiff: (a) the Defendant took a lower-class female and 10th female as a pet; (b) thereafter, was doubtful that the entire apartment was considered as a pet; (c) the Defendant thought that the fact of the appearance of the Plaintiff was likely to make the head of the luxin by spreading salt acid to the Plaintiff; and (d) it was thought that the Defendant would have caused the death of oneself by putting salt acid into tap water at a lower-class.

E. The Plaintiff and the Defendant are currently living separately from August 2017 to the present date, and the Defendant pays 90,000 won per month to the Plaintiff even after their stay separately.

F. On March 29, 2019, the Plaintiff filed the instant lawsuit. The Defendant consistently expressed that the Plaintiff does not want to divorce with the Plaintiff in the instant divorce lawsuit.

[Ground of recognition] Each entry of Gap evidence Nos. 1 and 2 (each number includes numbers; hereinafter the same shall apply), family fact investigator's report, and the purport of the whole pleadings

2. Determination on the claim for divorce

A. The plaintiff's assertion

The Defendant had constantly committed an unlawful act with the neighbors after the marriage, and assaulted the Plaintiff from time to time. From August 2017, the Plaintiff and the Defendant were living separately from around August 2017, and the marriage of this case was broken down due to the cause attributable to the Defendant, such as the absence of substance of the marital life. A divorce is sought due to each of the reasons under Article 840 subparag. 1, 3, and 6

(b)boards;

1) Determination as to a divorce claim pursuant to Article 840 subparagraph 1 of the Civil Act

The records of No. 8 and the evidence submitted by the Plaintiff alone are insufficient to recognize that the Defendant committed an unlawful act during the marriage period, and there is no other evidence to acknowledge it.

2) Determination as to a divorce claim pursuant to Article 840 subparag. 3 of the Civil Act

“A person who is extremely maltreated by the spouse, who is a reason for divorce as stipulated in Article 840 subparag. 3 of the Civil Act” refers to a person who was abused, abused, or insultd to the extent that compelling the continuation of a matrimonial relationship would be harsh (see, e.g., Supreme Court Decision 2003Meu1890, Feb. 27, 2004).

According to the purport of the family investigator report and the whole pleadings, although the defendant has been tightly or abused several times during the period of marriage, the plaintiff and the defendant maintained their marital relationship even thereafter, and considering the circumstances leading to the defendant's above act and the following circumstances, it is insufficient to recognize that the above facts and the evidence presented by the plaintiff alone are sufficient to recognize that the plaintiff was subject to violence, abuse, insult, etc. or unfair treatment equivalent thereto to the extent that it would be harsh for the plaintiff to force the defendant to continue his/her marital relationship. There is no evidence to acknowledge otherwise.

3) Determination as to a divorce claim pursuant to Article 840 subparagraph 6 of the Civil Act

A) Relevant legal principles

Marriage is a combination in which the moral and scenic sense of which the purpose is to lead a common life of a man and woman is to lead a living together with the couple, and have the duty to support and cooperate with each other (Article 826(1) of the Civil Act). Thus, in married life, both spouses shall make their best efforts to maintain their marital life by understanding and protecting the other party with difficulties, faith, and personality, and even in cases where there are many circumstances that are obstacles to the marriage life, the couple shall make every effort to overcome such obstacles (see Supreme Court Decision 97Meu612, Feb. 12, 199).

"When there is a serious reason for making it difficult to continue the marriage, which is a cause of divorce under Article 840 subparagraph 6 of the Civil Act" means the case where the marital relationship corresponding to the essence of the marriage has been broken down to the extent that it is impossible to recover, and compelling the continuation of the marital life to the extent that it becomes impossible for one spouse to join the other spouse. In determining this, the existence of intention to continue the marriage, whether or not the parties have been responsible for the cause of failure, the period of marital life, the existence of children, the age of the parties concerned, the guarantee of livelihood after divorce, and all other circumstances of the marriage shall be taken into account (see, e.g., Supreme Court Decision 200Meu2130, Dec. 24,

B) the board;

The following circumstances acknowledged by the evidence and the purport of the entire pleadings, namely, ① the Defendant consistently does not want divorce with the Plaintiff during the proceeding of the instant lawsuit, i.e., the Defendant stated to the effect that the Plaintiff is responsible for the Plaintiff. ② Although the Plaintiff and the Defendant were living separately from August 2017, the Plaintiff and the Defendant maintained a matrimonial relationship for about 40 years, the Plaintiff and the Defendant cannot be deemed to have maintained a separate period compared to the entire period of marriage. ③ The Defendant prepared a lease deposit at the present residence, and continued to pay the Plaintiff living expenses, etc., ④ the Plaintiff brought a lawsuit seeking divorce in this case without having an opportunity to communicate or communicate with the Defendant and the Defendant, and (5) the Plaintiff seems to have difficulty in living alone, such as monitoring and threatening the Defendant and the Defendant’s related persons without any special reason, and it appears that there is no need for the Plaintiff to fully understand and support the marital relationship between the Plaintiff and the other party to the lawsuit.

3. Determination on the claim for consolation money and division of property

As long as the plaintiff's claim for divorce is rejected, the consolation money and the claim for division of property premised on divorce are without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed, and it is so decided as per Disposition.