2017Dhap200958 Compensation (as referred to in this paragraph)

A person shall be appointed.

A person shall be appointed.

July 12, 2018

September 6, 2018

1. The defendant shall pay to the plaintiff 20,00,000 won with 5% per annum from February 9, 2018 to September 6, 2018, and 15% per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 30,000,000 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. On February 10, 1954, the Plaintiff and Park 00 had four adult children, who were legally married couple who completed the marriage report, under the chain of majority.

B. Park 00 operated the hospital from March 3, 1963 to December 2015. The Defendant planned the exhibition on December 12, 198, and became aware of Park 00. The Defendant around that time sold cosmetics at the above hospital, and was engaged in a series of overseas business trips with Park 00.

C. Park 00 established the company on September 29, 1989 and operated the landscaping project. The Defendant, around 1997, became a member of the company and helps to work for Park 000 days. From around 2000 to December 1, 2014, the above company was operated in Do.

D. The Defendant and Park 00 made an average of 6 to 7 occasions telephone conversationss. On August 2016, 2016, the Plaintiff resided in the house of his child B and her child, and the Plaintiff and Park 00 became a separate person, and the Defendant had a food of Park 00 from time to time opened the house of Park 00 and left the house of 00.

E. From around 2005 to 2017, Park 00 remitted money in excess of KRW 00 million to the Defendant. The Defendant took full charge of personal financing execution by directly performing business, such as Park 00’s account transfer, the issuance of stocks, and the purchase of goods, using the account in his/her name. The Defendant paid 00 attorney-at-law appointment costs in a divorce lawsuit filed against the original high-priced Park 00.

F. From 00 construction to 100 construction to receive payment in lieu of the claim for the payment in kind, the Defendant completed the registration of ownership transfer on behalf of 00 companies for the above apartment from 00 companies on November 17, 200 to 17, 200.

G. On February 9, 2018, between the Plaintiff and Park 00, the Plaintiff and Park 00 divorced, and Park 00 have concluded a mediation to pay 500 million won to the Plaintiff as consolation money and division of property (hereinafter “instant mediation”).

H. The Defendant and Park 00, after the instant conciliation, completed the marriage report on May 8, 2018, and was added by law.

[Grounds for recognition] Each entry of Gap evidence Nos. 1, 2, 3, 6 through 10, 12 through 18, 20 through 27, 30, 31, Eul evidence Nos. 2, 6, 11 and 12 (including the number of each branches), and the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

In principle, a third party’s act of infringing on a couple’s common life falling under the essence of marriage or interfering with the maintenance thereof and infringing on a spouse’s right as the spouse, thereby causing mental pain to the victimized party constitutes a tort (see, e.g., Supreme Court en banc Decision 201Meu2997, Nov. 20, 2014). “Cheating” in this context refers to a broad concept that includes the adultery, but does not reach common sense, includes any unlawful act that does not fit the husband’s duty of good faith, and whether it is an unlawful act or not shall be evaluated in consideration of the degree and circumstances of the previous physical issue (see, e.g., Supreme Court Decision 87Meu576, May 26, 1987).

As seen earlier, the Defendant, even though being aware that Park 00 is a spouse, was working for about 30 years together with Park 00 and frequently visited with Park 00 and entered the house of Park Park 00 for more than a number of times in the line of duty. A large amount of money has been contributed from Park 00 to Park and directly managed the property of Park 00 for a prolonged period from Park 00, and filed a report on marriage with Park 00 immediately after the instant conciliation was completed. Considering the above circumstances, the Defendant’s act constitutes a fraudulent act that infringes on the marital nature or interferes with the maintenance of the marital community life and infringes upon the Plaintiff’s rights as the spouse. The Defendant is obligated to inflict mental damage on the Plaintiff due to the aforementioned unlawful act in money.

B. Judgment on the defendant's assertion

1) Even if the Defendant is liable to pay consolation money, the Defendant and Park 00 were jointly and severally involved, and the Plaintiff, through the instant conciliation, received full reimbursement of KRW 50 million from Park 00,000,000 as consolation money, and thus, the Defendant alleged that the Defendant, a quasi-joint and several liability, extinguished the obligation to pay consolation money.

Since tort liability borne by the Defendant and Park 00 against the Plaintiff is one of the joint tort liability, the other party’s obligation is extinguished if one of the overlapping parts is extinguished by performance. However, there is no evidence to acknowledge that Park 00 paid both the above party’s compensation and the division of property according to the instant conciliation to the Plaintiff. Furthermore, since the amount that Park 00 paid to the Plaintiff in the instant conciliation is the cause of consolation money and the division of property, it is difficult to specify the amount of consolation money, and therefore, it is difficult to conclude that Park 00 paid the Plaintiff in full. Accordingly, it is difficult to conclude that the Defendant’s compensation liability against the Plaintiff is extinguished by the repayment of consolation money to the Plaintiff. Accordingly, this part of the Defendant’s assertion is without merit.

2) The Defendant asserts that the circumstances relevant to the previous misconduct before May 2, 2014, which was the Plaintiff’s filing date, should not be considered in calculating the amount of solatium.

On the other hand, the plaintiff's claim against the defendant of this case is not a claim for damages caused by the defendant's illegal act itself, but a claim for damages under the premise that the plaintiff and his Park 00 caused the divorce to be caused by the defendant's mistake. In this case, damages can only be assessed to be caused by the defendant's mistake. Thus, while the divorce has not yet become final and conclusive, it is reasonable to view that the damages cannot be known while the divorce has yet to become final and conclusive, and that the damages have been known clearly when the divorce has been constituted. As seen earlier, the damages suffered by the plaintiff and his Park 00 can be assessed only when the divorce has been established on February 9, 2018 between the plaintiff and the plaintiff and his Park 00, and it is reasonable to deem that the damages incurred by the plaintiff have been clearly known only when the divorce has been established. On the other premise, the above argument by the defendant is without merit.

3) The Defendant asserts that the circumstances related to the wrongful act that existed after the time of the separation of the Plaintiff and Park 00 did not have any excessive relationship with the failure of marriage and the computation of consolation money should not be taken into account, since the marriage relationship between the Plaintiff and Park 00 was broken down on August 2016, which was the time of the two persons’ separation.

However, in light of the fact that there was an objection against the divorce at the time when the said divorce lawsuit was filed, it cannot be readily concluded that the marriage was completely broken down to the extent that the marriage would no longer have been recovered. Accordingly, the Defendant’s assertion contrary thereto is without merit.

(c) Scope of damages;

As to the amount of consolation money that the Defendant is liable for, comprehensively taking into account all the circumstances revealed in the pleadings of the instant case, such as health team, the period of marriage between the Plaintiff and Park 00, the process of failure of marital life, the degree and period of misconduct between the Defendant and Park 00, the developments leading up to the formation of the instant conciliation, and the circumstances after the act, it is reasonable to determine the amount of consolation money as KRW 20,00,000.

D. Sub-committee

The defendant is obligated to pay to the plaintiff 20,000,000 won and damages for delay calculated at each rate of 15% per annum under the Civil Act until September 6, 2018, which is the date of the adjudication of this case, which is the date of the adjudication of this case, where it is deemed reasonable for the defendant to dispute as to the existence of the obligation or the scope of the obligation from February 9, 2018, which is the date of the bankruptcy of the plaintiff 20,000 to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining part is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo

Judges Cho Jae-sung

A judge's on-site overseas training is unable to sign and seal;

The presiding judge

Judges