[1] Whether the subject of division of property and whether one spouse’s obligation to refund the lease deposit owed by the third party during the marriage is the subject of liquidation (affirmative)

[2] The degree of determination of the property value subject to division

[3] The method of evaluating the value of property, which is the basis of the property division amount assessment

[1] The actual common property of the married couple created through mutual cooperation is the object of division of property regardless of who takes over the management of the title, including real estate, cash and deposit assets, etc. The property acquired after separation by one of the married couple is the object of division of property if it is based on the tangible and intangible resources formed through mutual cooperation between the two parties before separation. On the other hand, in the case where one of the married couple bears the obligation to a third party during marriage, the obligation borne by the formation of the common property is the object of liquidation. The obligation to return the lease deposit for real estate is the obligation accompanied by the formation of the property during marriage, unless there are special circumstances.

[2] The property subject to division shall be active property, small property, or its amount shall be generally determined.

[3] The value of the property, which is the basis of the assessment of the amount of division of property, shall not be necessarily recognized by the market price appraisal, but shall be assessed based on objectivity and rationality data.

[1] Article 839-2 of the Civil Act / [2] Article 839-2 of the Civil Act / [3] Article 839-2 of the Civil Act

[1] [2] Supreme Court Decision 92Meu501 delivered on May 25, 1993 (Gong1993Ha, 1881) / [1] Supreme Court Decision 94Meu1072 delivered on December 2, 1994 (Gong1995Sang, 491) Supreme Court Decision 97Meu93 delivered on September 26, 1997 (Gong1997Ha, 3288), Supreme Court Decision 96Meu1076, 1083 delivered on December 26, 1997 (Gong198Sang, 514) / [3] Supreme Court Decision 94Meu734 delivered on October 25, 1994 (Gong194, 3125Ha, 195Ha, 197, 195Ha decided on May 26, 195) 197

Plaintiff

Defendant (Attorney Han Ho-hoon, Counsel for the defendant-appellant)

Daegu High Court Decision 95Reu510 delivered on August 22, 1996

The part of the judgment below regarding division of property is reversed, and that part of the case is remanded to the Daegu High Court. The defendant's remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the consolation money portion

After finding the facts in full view of the evidence, the court below determined that the marriage relationship between the plaintiff and the defendant was broken down due to extremely unfair treatment against the plaintiff by the plaintiff, and ordered the defendant to pay the consolation money of KRW 100,000,000 to the defendant in consideration of the plaintiff and the defendant's age, occupation, property status, period and contents of the marital life, the reason why the failure was broken down, and other circumstances shown in the pleadings. Such finding and determination by the court below are justified in light of records and relevant evidence, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to the calculation

This ground of appeal cannot be accepted.

2. As to the division of property

A. As to the scope of the property to be divided

The actual common property of the married couple, which is achieved through mutual cooperation during marriage, is the object of division of property regardless of who is in the title of the property, including not only real estate but also cash and deposit assets. Even if one of the married couple acquires property after separation, if it is based on the tangible and intangible resources formed through mutual cooperation between the two parties before separation, it shall be the object of division of property.

Meanwhile, in the case where one spouse bears the obligation to a third party during marriage, the obligation to be borne by the formation of the joint property out of the obligation is subject to liquidation, and the obligation to return the lease deposit for the real estate is subject to liquidation as the obligation accompanied by the formation of the property during marriage, unless there are special circumstances.

In addition, the property subject to division should be positive or negative property, or its amount should be determined generally (see Supreme Court Decision 92Meu501 delivered on May 25, 1993).

According to the records, the defendant manages 11 installment savings or insurance passbook, etc. in the name of the plaintiff and the defendant, and argued that the lease deposit for real estate listed in No. 1 of the attached Table 1 of the judgment of the court below is about KRW 100,000,000, and the lease deposit for real estate listed in No. 2 of the attached Table 1 of the judgment of the court below is about KRW 4,00,000 (Records No. 55 through 57 of the record). The court below did not confirm whether the above deposit assets and liabilities are subject to liquidation, whether the amount of the deposit is generally large, and if the deposit was withdrawn and consumed, the purpose thereof

In addition, according to the reasoning of the judgment below, the court below determined that the apartment in the judgment of the court below is acquired by the plaintiff around September 192, 192, after the marital relationship between the plaintiff and the defendant living in the court below led to the failure of bankruptcy, and it is not a divided property since it was not used or disposed of for the purpose of acquiring it. However, it is difficult to conclude that the plaintiff acquired the above apartment after the failure of marital relationship with the defendant without examining the size of the deposit property or its consumption.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of the property subject to division at the time of divorce and failing to exhaust all deliberations, which affected the conclusion of the judgment, and the appeal is with merit.

B. As to the appraisal of property value

The value of property, which serves as the basis for the assessment of division of property, shall not be necessarily recognized by the market price appraisal, but shall be assessed based on objectivity and reasonable data (see Supreme Court Decision 95Meu175, Oct. 12, 1995, 182).

According to the records, among the materials employed by the court below in assessing the value of each of the real estate in this case, Eul evidence Nos. 3-5 (Agreements on Divorce and Distribution of Property) among the documents presented by the defendant to the plaintiff around January 1994 by the defendant, is merely the defendant's arbitrary evaluation of the value of the real estate stated in Gap evidence No. 9-1 and No. 2. The witness, the non-party No. 1 and the non-party No. 2 are merely the register of the real estate stated in the above No. 1, and the non-party No. 3 are the plaintiff's friendship or the non-party No. 1 and the non-party No. 2 as the defendant's punishment, it is difficult to view the above materials as the materials to guarantee objectivity and rationality, and there is no objective and reasonable evaluation of

Therefore, the judgment of the court below is erroneous in the evaluation of real estate subject to division based on data lack objectivity and rationality, which affected the conclusion of the judgment. While pointing this out, the appeal is justified.

Therefore, since the part of the judgment of the court below on the appeal on division of property is well-grounded, it is reversed without examining the remaining grounds of appeal, and this part of the case is remanded to the court below for a new trial and determination, and the defendant's remaining appeal is dismissed, and it is so decided as per Disposition

Justices Cho Jae-hee (Presiding Justice)