2020Dhap200477 Divorce, etc.

2020dhap200484 (Counterclaim), divorce, etc.

A

Section B.

June 11, 2020

July 23, 2020

1. The plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) shall be divorced by counterclaim.

2. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 20,000,000 consolation money with 5% per annum from May 14, 2019 to July 23, 2020, and 12% per annum from the following day to the date of full payment.

3. The plaintiff (Counterclaim defendant)'s claim for divorce against the principal lawsuit and the remaining counterclaim consolation money by the defendant (Counterclaim plaintiff) are dismissed, respectively.

4. Property division:

A. The Plaintiff (Counterclaim Defendant) received the following money from the Defendant (Counterclaim Plaintiff) at the same time, and simultaneously takes the registration procedure for transfer of ownership with respect to 1/2 shares of the real estate in the separate sheet No. 1 list to the Defendant (Counterclaim Plaintiff) based on the fixed date of the judgment.

B. The Defendant (Counterclaim Plaintiff) paid KRW 140,00,000 to the Plaintiff (Counterclaim Defendant) at the same time upon receipt of the registration procedure for ownership transfer from the Plaintiff (Counterclaim Defendant). The Defendant (Counterclaim Plaintiff) upon receipt of the registration procedure for ownership transfer as set forth in the foregoing A., following the Plaintiff (Counterclaim Defendant)’s fulfillment of the registration procedure for ownership transfer as set forth in the attached Table 1, will be exempted from the obligation to return the lease deposit that the Plaintiff (Counterclaim Defendant) bears with respect to one-half of the real property as set forth in the

5. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

6. Paragraph 2 can be provisionally executed.

The claim of the principal lawsuit: The plaintiff (Counterclaim defendant, hereinafter referred to as the "Plaintiff") and the defendant (Counterclaim plaintiff, hereinafter referred to as the "defendant") are divorced. The defendant shall pay to the plaintiff 203,418,200 won as division of property and the amount calculated by the rate of 5% per annum from the day following the day this judgment becomes final to the day of complete payment.

The purport of the counterclaim: Paragraph (1) of this case and Paragraph (1) of this Article, the plaintiff paid to the defendant the amount calculated by the ratio of 15% per annum from the day following the delivery date of a copy of the counterclaim of this case to the day of complete payment (the defendant submitted the written withdrawal of the counterclaim of this case on October 30, 2019, and the plaintiff submitted the written consent of withdrawal of the counterclaim of this case on November 4, 2019 and stated that he consented to the withdrawal of the solatium claim of this case on November 5, 2019 at the third date for pleading of this case on November 5, 2019. However, as long as the plaintiff consented to the withdrawal of the counterclaim of this case, the validity of the withdrawal of the counterclaim of this case by the defendant becomes extinct, and even if the plaintiff reversed his intention after the reversal of the counterclaim of this case, the withdrawal of the counterclaim of this case does not take effect again (see, e.g., Supreme Court Decision 69Da130, 13132).

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The plaintiff and the defendant are legally married couple who completed the marriage report in 1976, and have three adult children under the chain.

B. The Plaintiff made frequent drinking during the marriage, and repeatedly used violence against the Defendant and his/her children.

C. Since around 1994, the Defendant continued to live in a workplace and was responsible for livelihood, and mainly took charge of raising home affairs and children. From around 1982, the Plaintiff engaged in cargo transport business and paid small amount of living expenses to the Defendant while providing the security business from January 201, 201.

D. The Plaintiff bears a number of obligations. The Defendant paid 5,957,000 won on behalf of the Plaintiff’s card loan obligations.

E. On February 2019, the Plaintiff went to work immediately after receiving a cancer diagnosis, and the Plaintiff and the Defendant were living separately from that time.

[Ground of recognition] Gap evidence 1 to 3, Eul evidence 7 to 15, Eul evidence 1 to 10, 14 to 17 (including each number), the purport of the whole pleadings

2. Determination on the claim for divorce and consolation money

(a) A claim for divorce: No reason exists;

B. Counterclaim divorce claim: A ground under Article 840 subparagraph 6 of the Civil Act exists. A counterclaim solatium claim is reasonable within the scope of KRW 20,000,000.

【Reasons for Determination】

(1) Recognition of the failure of marriage: The marriage relationship between the plaintiff and the defendant was broken down in consideration of various circumstances, including the fact that the plaintiff and the defendant agree to the divorce and the possibility of recovery of the relationship is low, as separate cases exist.

(2) The plaintiff is mainly responsible for the failure of marriage: The marriage between the plaintiff and the defendant shall be deemed to have occurred repeatedly due to violence against the defendant and his/her children, and the plaintiff's main mistake, which seems to be economically unreasonable.

③ The duty to pay consolation money and amount: The Plaintiff is obligated to pay consolation money for mental distress sustained by the Defendant due to the failure of the marriage. The amount shall be determined as KRW 20,000,000 in consideration of all the circumstances shown in the pleadings, such as the cause and degree of responsibility of the marriage dissolution as seen earlier and the period of marriage, age, occupation and economic power of the Plaintiff and the Defendant.

D. Sub-committee

Therefore, the plaintiff is divorced from the plaintiff by counterclaim, and the plaintiff is obligated to pay to the defendant the consolation money of KRW 20,00,000 as well as damages for delay calculated at each rate of 5% per annum under the Civil Act until July 23, 2020, which is the date of the decision of this case, which is the date of the decision of this case where it is recognized that it is reasonable for the plaintiff to dispute as to the existence of the obligation or the scope of the obligation of performance from May 14, 2019 to the date of the delivery of a copy of the counterclaim of this case.

3. Determination as to the claim for division of property

(a) Property and value to be divided;

1) Property subject to division: Attached Table 2 is as indicated in the “Attachment 2” list of property subject to division (the subject and value of property division shall be determined as of the date of closing of argument in this case; Provided, That in a case where consumption or concealment is easy as money and where there is a risk of overlapping if the base point of time differs, it shall be deemed that the marriage relationship has reached the failure as of the date of the lawsuit in this case by the Plaintiff, which is the date of filing a lawsuit on February 26, 2019, shall be presumed to exist and the subject and value of division shall be determined by presumption that the amount of money has reached the

(ii) the value of the property to be divided;

A) Plaintiff’s net property: 105,000,000 won

B) Defendant’s net property: 294,836,400 won

C) Total amount of net property of the Plaintiff and the Defendant: 399,836,400 won

(b) The ratio and method of division of property;

1) Division ratio: Plaintiff 35%, Defendant 65%

[Ground for determination] The method of division of property as seen above takes into account the degree of contribution of the Plaintiff and the Defendant to the formation and maintenance of the property subject to division as well as the process and period of marital life, income, property, economic power, etc. of the Plaintiff and the Defendant: (a) taking into account the intent of the parties; (b) the ownership, acquisition, and maintenance of the property subject to division as seen earlier; and (c) the ownership of the property subject to division as seen earlier; and (d) the Plaintiff’s obligation to refund the Plaintiff’s lease deposit on the real property in attached Table 1, among the real property subject to division, belongs to the Defendant, and the remainder of the property subject to division belongs to the Defendant as it is in the current name; and (b) the Defendant pays to the Plaintiff the shortage of the amount that

3) Property division amount that the Defendant shall pay to the Plaintiff: 140,000,000 won

[Calculation Form] ① The Plaintiff’s share of net property of the Plaintiff and Defendant according to the division rate of property

Total net property 399,836,400 won X35% =139,942,740 won

② From the above paragraph (1), the amount calculated by subtracting the Plaintiff’s net property (=139,942,740 won - 105,000,000 won)

③ Property division amount to be paid by the Defendant to the Plaintiff is KRW 139,942,740, which reflects the instant real property (value of KRW 110,00,000) and the obligation to return lease deposit (value of KRW 5,00,00) (value of KRW 34,942,740, +110,000 + KRW 5,000,000)

③ The amount set forth in the above paragraph shall be KRW 140,000,000,000, which covers several amounts set forth in the above paragraph.

Therefore, as a result of division of property, the Plaintiff has the obligation to implement the procedure for ownership transfer registration of the instant real estate, and the Defendant has the obligation to pay the Plaintiff KRW 140,00,000 to the Plaintiff, and to accept the lease deposit repayment obligation (negative of the Plaintiff in the list of property subject to division in attached Form 2) that the Plaintiff bears with respect to the instant real estate as a discharge of liability. Under the principle of fairness, it is reasonable to view that the Plaintiff’s obligation to pay the Plaintiff’s settlement deposit is in the relationship of simultaneous performance. As such, the Plaintiff is obligated to implement the procedure for ownership transfer registration for the instant real estate on the ground of the fixed date of division of property by receiving KRW 140,00,000 from the Defendant at the same time, and the Defendant has the obligation to pay KRW 140,00,000 to the Plaintiff at the same time with respect to the instant real estate upon the execution of the procedure for ownership transfer registration by the Plaintiff.

4. Conclusion

Therefore, the defendant's counterclaim claim for divorce and the counterclaim consolation money within the above scope of recognition shall be accepted for each reason, and the plaintiff's claim for divorce against the principal lawsuit and the defendant's remaining counterclaim consolation money shall be dismissed for each reason, and the division of property shall be determined as above. It is so decided as per Disposition.

Presiding Judge, Park Jae-won

Judges Mobileho

Judges or Jae-young