In a case where Party A and Party B reported a marriage after having reported a divorce by agreement, and then reported a divorce by agreement again, and thereafter, Party B sought a division of property against Party B by agreement prior to the first and second divorce, the case holding that Party B’s claim for division of property is unlawful on the grounds that the agreement on division of property had already been concluded by agreement prior to the second divorce, in light of all the relevant circumstances, and barring any special circumstance, Party B’s claim for division of property is unlawful on the grounds that there was no benefit in the claim, barring any special circumstance.

In the process of reporting a marriage between A and B after reporting a divorce by agreement, and reporting a divorce by agreement again, a divorce agreement including the details of division of property, etc. was prepared before the first and second divorce, respectively. After which Party B sought a division of property due to divorce against Party B.

The case holding that, in light of the fact that the agreement on property division between Gap and Eul is determined to own the property under the name of Gap and Eul before the second divorce, and the agreement on property division is stipulated in the agreement on property division, and that in addition to the content on property division, there seems to have been a significant consultation on the contents at the time of preparation of the agreement on property division, the first divorce is prepared and certified in detail as to the rearing of children and the division of property at the time of the first divorce. The majority of the marital joint property was acquired at the time of the first divorce, and it seems that Gap and Eul had already known the property to be subject to property division at the time of preparation of the agreement on property division and discussed about their contribution and method of property division, etc., after one year after the second divorce, and there was no additional acquisition of real property after marriage, etc., the agreement on property division has already been concluded by the agreement on property division at the time of the second divorce, barring any special circumstances.

Article 839-2 of the Civil Act

Claimant (Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

Other party (Law Firm Cheongn, Attorneys Choi Byung-il et al., Counsel for defendant-appellant)

1. The appeal of this case is dismissed.

2. Trial costs shall be borne by the claimant.

The other party shall pay to the claimant the amount of 299,50,330 won and the amount of 5% per annum from June 20, 2017 to the date of this judgment, and 12% per annum from the next day to the date of full payment.

1. Facts of recognition;

(a) Grounds for divorce;

1) On June 21, 2013, the claimant and the other party reported marriage on April 20, 2016 (hereinafter “the first divorce”), but reported marriage again on July 22, 2016, and reported divorce again on June 20, 2017 (hereinafter “the instant divorce”).

2) The claimant has one child born between the married spouse and there is no child between the claimant and the other party. The other party raised the other party to the claim from June 2018 after the divorce of this case, but the claimant sent one other than the claimant to New Zealand on June 2018.

(b) Details of the formation of property;

1) The claimant worked as a non-exclusive person during the period of marriage, and the other party was in exclusive charge of household affairs and parenting during the period of marriage.

2) On August 26, 2015, the other party purchased a right to sell the apartment house located in Busan Metropolitan Government (number 1 omitted) and one parcel (hereinafter “instant apartment house”), and completed the registration of ownership transfer on August 26, 2015. On August 17, 2015, the other party prepared a purchase price for the said right to sell with a loan granted from the Bank of Korea Co., Ltd. on June 5, 2017. The other party sold the said real estate at KRW 620,000,000.

3) On March 3, 2013, the claimant purchased a building of approximately 274 square meters and its ground (hereinafter “instant building”) in KRW 120,00,000, and sold the said real estate in KRW 150,000 on May 25, 2018. On May 31, 2018, the claimant leased the said real estate in KRW 25 million to operate the legal party.

4) On December 16, 2015, the claimant acquired a gift of 1,791 square meters of forest land (number 3 omitted) (hereinafter referred to as “○○-ri land”) in Magdong-gun (number 3 omitted) and donated the said real estate to 2 other than the claimant on May 11, 2018.

(c) Preparation of a written agreement on divorce;

1) On March 10, 2016, immediately before the first divorce, the claimant and the other party prepared a written agreement of divorce with the following contents and received a certification (a notary public’s new law firm Dong division (number omitted); hereinafter “first agreement”).

As for divorce, consolation money, child care, and division of property in the table included in the main text, Party A and Party B agree as follows. 1. From March 10, 2016, Party A and Party B shall be a person with parental authority and take care of Party A and Party B from March 10, 2016. 2. Party B and Party B shall own each own property in their own name. 3. Party B sent Party B’s animals and clothes from March 10 to March 13, 2016 as Party A wishes. Party B and Party B shall pay installment payments to Party A and manage the vehicle. Party BM vehicle, a joint owner of Party B and Party B, shall transfer the vehicle to Party A’s sole name.

2) On May 17, 2017, immediately before the instant divorce, the claimant and the other party drafted a written agreement of divorce with the following contents (hereinafter “instant agreement”).

A and B agree as follows with respect to divorce, consolation money, bringing-up of their children, and division of property in the table included in the main text. A and B, at their own will, shall raise the married children from May 28 to May 28, 200. 2. A and B own their own property under their respective names.

[Reasons for Recognition] Gap evidence Nos. 1 through 6, 15 through 17, 23, 27 (including a number; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, and the purport of the whole examination

2. Determination on the legitimacy of the instant petition for adjudication

A. The claimant's assertion

With respect to the claimant's claim for division of property following the divorce by agreement against the other party, the other party has already agreed on division of property through the agreement of this case, and thus, the appeal of this case has no interest in the claim.

On this point, the claimant asserts that the consultation in this case is null and void because the consultation in this case is due to a juristic act that has considerably lost fairness due to the illness of the claimant suffering from mental illness such as depression disorder, etc. due to the illness, rashness or inexperience of the claimant, or ② the claimant has believed the name of the apartment in this case to be the other party's words as the claimant, and made the consultation in this case. Thus, it is revoked on the ground that it is by deception of the other party, or ③ the agreement in this case has waived the right to claim a division of property which cannot be waived in advance.

B. Determination

1) Article 839-2 of the Civil Act provides that one of the parties who has been divorced by agreement may claim a division of property against the other party (Paragraph 1). When an agreement on the division of property is not reached or is impossible, the Family Court shall, upon the party’s claim, determine the amount and method of division by taking into account the amount of the property achieved through mutual cooperation between the parties and other circumstances (Paragraph 2). In a case where an agreement on the division of property has already been reached between the parties on the division of property, there is no benefit in the claim (see Supreme Court Decision 93Meu409, Dec. 28, 1993, etc.).

2) Determination on the existence of the agreement on division of property

In full view of all of the following circumstances recognized as above and the details of the property size and formation of the claimant and the other party, the agreement on the division of property has already been reached between the claimant and the other party through the agreement of this case, and the petition for adjudication in this case is unlawful as there is no benefit of the claim, barring special circumstances.

A) The instant agreement stipulates that the property shall be owned respectively by the claimant and the other party, and the matters agreed on the property shall be specified. In addition to the details of the division of property, the details of the other party’s fostering, etc., other than the claims for property division, the claimant and the other party seem to have agreed on the contents of the agreement at the time of the preparation of the said agreement.

B) At the time of the first divorce, the claimant and the other party have prepared and certified a detailed written agreement with respect to raising children and division of property, etc. The most of the married joint property between the claimant and the other party including the apartment of this case is acquired before the first divorce, and the claimant and the other party have already known the property subject to division of property at the time of preparation of the first written agreement and discussed the both parties' contribution to division of property and the method of division of property.

C) The claimant and the other party were not married once more than one year, and they came to result in the divorce of this case, and there is no fact that they additionally acquired real estate, etc. after the marriage.

D) In the instant agreement, the claimant and the other party agreed to own their own property in their respective names. According to this, the instant legal party in which the claimant engages in income activities and the ○○-ri land donated by the claimant shall belong to the claimant, and the apartment of this case, which prepared a considerable portion of the sales price with the loan granted under the name of the other party, shall belong to the other party. Thus, the contents of the instant agreement cannot be deemed to be unilaterally disadvantageous

3) Determination as to the claimant's assertion

A) The assertion that the invalidation is null and void in violation of Article 104 of the Civil Act

An unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between benefit and benefit in return, and such an act is established when a transaction which has lost balance as such is conducted using gambling, rashness, or experience of the victimized party. The purpose is to regulate gambling, rash, or in without experience of the injured party. It is sufficient to fully satisfy all the requirements for establishing an unfair legal act, rather than to satisfy all the requirements that require gambling, rashness, and experience, which are the requirement for establishing the unfair legal act. The term “pathmbling” refers to a lack of experience in general daily life. It refers to a lack of experience in a particular area, which means that there was a lack of experience in ordinary trade, not a lack of experience in general, but a lack of experience in ordinary trade, and whether a party was in a state of gambling or experience, referring to the age and occupation of the injured party and the degree of damage inflicted by the other party to the act.

According to the evidence evidence Nos. 10 and 11, the fact that the claimant suffered from the yellow disorder at the time of the consultation in this case is recognized, but on the other hand, the circumstances and records revealed in the above paragraph 2 are as follows. In other words, in light of the claimant's age, academic background, career, and degree of social experience as well as the fact that the claimant was operating a house of "△△△△△△" from the beginning of October 2012, the claimant's age, academic background, experience, etc., it is insufficient to recognize that the above facts alone are insufficient to recognize that the claimant had been in the state of old-age, rashness, experience, etc. at the time of the consultation in this case, and there

B) Claim for revocation by fraud

The evidence presented by the claimant alone is insufficient to recognize that the claimant had expressed his/her intent to consult in this case by deceiving the other party at the time of the consultation in this case, and there is no other evidence to acknowledge it.

C) Claim for renunciation of the right to claim division of property

It is not permissible in light of the nature to waive the right to claim division of property that has not been embodied in consultation or adjudication before the marriage is annulled (see Supreme Court Decision 2015No451, Jan. 25, 2016). However, in cases where the parties who have not yet divorced agree on divorce at the future, and the written waiver of the right to claim division of property is prepared in the course of agreement on the divorce at the future, the amount of the property that is the object of division of property, the amount of the property that is the object of division of property that is formed through cooperation between the couple’s intention to liquidate and distribute all the common property, and the method of division, if there are circumstances that one of the couple gives up the right to claim division of property as a result of agreement on both parties’ contribution and the method of division of property, the agreement on division of property shall be deemed not to be “prior renunciation of the right to claim division of property,” but “agreement on division of property” as

In full view of the circumstances recognized in the above 2, it is reasonable to view the instant agreement as “a waiver agreement” rather than “a prior renunciation of the right to claim a division of property,” and “consultation on division of property.”

D) Therefore, the claimant’s assertion is without merit.

3. Conclusion

Thus, the appeal of this case is unlawful, so it shall be dismissed and judged as per Disposition.

Judges Park Jong-won (Presiding Judge) Lee Dong-young