[1] If there is no remaining amount if the amount of debt subject to liquidation is deducted from the total value of property, whether the other spouse’s claim for division of property is made (negative)

[2] Whether it is permissible for a court to separately determine a separate rate between positive and negative properties without any reasonable ground, or to separately separately determine a separate rate between positive and negative properties (negative)

[3] The case reversing the judgment of the court below ordering division of property on the ground that there is no reasonable ground, in case where the small-sized property exceeds the positive property, since the property subject to division is divided into the business related property and other property

[1] In light of the purport of Article 839-2(2) of the Civil Act, it is reasonable to view that the division ratio of property refers to the ratio of the other spouse to divide the entire formed property from the other spouse in consideration of the degree of contribution to the individual property, and the degree of contribution and all other circumstances. In addition, in a case where one spouse bears the obligation to a third party during marriage, the obligation that is incurred by the formation of the joint property out of the said obligation is subject to liquidation. Thus, in a case where one spouse bears the obligation that is subject to liquidation as above, and there is no amount remaining after deducting the above obligation from the total property value, the other party’s claim for division of property cannot be accepted.

[2] The court shall not allow the arbitrary adjustment of the value of the active property to be divided by distinguishing the active property from the passive property without any reasonable ground, or by separately separating the property to be divided, and by separately determining the ratio of division.

[3] The case reversing the judgment of the court below ordering division of property on the ground that there is no reasonable ground, in case where the small property exceeds the positive property, by distinguishing the property from the business-related property and other property

[1] Articles 839-2 and 843 of the Civil Act / [2] Articles 839-2 and 843 of the Civil Act / [3] Articles 839-2 and 843 of the Civil Act

[1] Supreme Court Decision 92Meu501 delivered on May 25, 1993 (Gong1993Ha, 1881), Supreme Court Decision 94Meu963 delivered on November 11, 1994 (Gong1994Ha, 3274), Supreme Court Decision 94Meu1072 delivered on December 22, 1994 (Gong195Sang, 491), Supreme Court Decision 97Meu933 delivered on September 26, 1997 (Gong197Ha, 3288), Supreme Court Decision 96Meu1076, 1083 delivered on December 26, 1997 (GongGong198, 514)

Plaintiff

Defendant (Law Firm Gyeong, Attorneys Kim Hong-sub, Counsel for the defendant-appellant)

Principal 1 and 2 others

Seoul High Court Decision 2000Reu1129 delivered on February 15, 2001

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

1. As to the assertion of misapprehension of legal principles as to the method of division of property

The lower court determined the Plaintiff’s division rate of 40% on the ground that the Plaintiff’s property formed by joint cooperation in the marriage between the Plaintiff and the Defendant’s apartment complex located in the district and the obligation to return the deposit for lease on a deposit basis, securities deposit and stocks, bank deposits, insurance money, etc., and the Plaintiff’s claim for return of deposit against leased buildings including the second class 1 of the housing located in Songpa-gu Seoul Metropolitan City, Songpa-gu, and the obligation for loans to the Korea Light Bank and the Korean National Bank, and the obligation for Kim Jong-sung, etc., were property related to the business of the Simsan Unemployment, and determined 60,000,000 won, which was less than the amount calculated according to the respective division rate, was the property division rate that the Defendant paid to the Plaintiff.

In light of the purport of Article 839-2(2) of the Civil Act, it is reasonable to view that the division ratio of property refers to the ratio of the other spouse to the whole formed property by taking into account the degree of contribution to the individual property, and the degree of contribution and all other circumstances. In addition, in the case where one of the married couple bears the obligation to a third party during the marriage, the obligation incurred in the formation of the joint property out of the said obligation is subject to liquidation. Thus, in the case where one of the married couple bears the obligation that is subject to liquidation as above, and there is no amount remaining if the above obligation is deducted from the total property value, the other party's claim for division of property cannot be accepted (see Supreme Court Decision 97Meu933 delivered on September 26, 1997).

Therefore, the court shall not allow the arbitrary adjustment of the value of active property to be divided by distinguishing the active property from the passive property without any reasonable ground, or by separately separating the property to be divided, or by separately determining the ratio of division.

In this case, the lower court classified most debts as business-related properties on the ground that the total value of positive property, which is KRW 412,967,108, and the total value of the negative property is KRW 441,50,000, and the positive property exceeds the positive property, and thus, becomes ineligible for division of property. The lower court determined the amount of division of property to be paid to the Plaintiff by adjusting the positive property to the remainder of the positive property, by setting the lower rate of 10% for the business-related property, which exceeds the positive property, on the ground that it is the business-related property and other property.

However, according to the records, among the property classified as business-related property, the above property is difficult to be classified as business-related property in light of the defendant's assertion that the second floor of the Songpa-gu Seoul Metropolitan Government House No. 1 was living in the previous house and the present defendant's sentence had resided, and the national bank's loan obligation to the national bank was secured by the apartment house located in the district, and that the above apartment was loaned from the national bank to purchase the above apartment house, and it is difficult to classify the above property as business-related property. In addition, most of the property formed between the plaintiff and the defendant is deemed to have been provided by the defendant as profits from the operation of the Geumsan unemployment. In light of the fact that the plaintiff actually subsidized the operation of the above factory except for domestic affairs and childcare, it is difficult to view that the court below has a reasonable ground to determine the lower ratio of 10% of the business-related property differently from the business-related property.

Ultimately, the judgment of the court below on division of property is erroneous in the misunderstanding of legal principles as to the calculation of division of property, which affected the conclusion of the judgment.

2. As to the violation of the rules of evidence and the incomplete hearing

In light of the records, the decision of the court below that rejected the defendant's assertion that the claim for the return of the deposit for lease on the second and third units of the housing in Songpa-dong, Songpa-gu, Seoul is not remaining due to the extinguishment of the claim for the return of the deposit for lease on the second and third units of the housing in Songpa-gu, Seoul, is just and there is no

3. The part which the court below partially accepted the plaintiff's claim for consolation money does not contain grounds for appeal, and examining the records in light of the court below's determination, the contents of the court below's decision as to the exercise of parental authority, designation of a custodian, and child support

4. Therefore, the part of the judgment below regarding division of property is reversed, and that part of the case is remanded to the Seoul High Court, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)