[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. Having comprehensively considered the evidence adopted, the court below found the facts as set forth in its judgment, and determined that the de facto marital relationship (사실혼관계) in this case had reached a state of breakdown to the extent that it could no longer be maintained due to the Defendant's fault, and ordered the Defendant to pay consolation money (위자료) in the amount of KRW 30,000,000. In light of the record and the relevant evidence, this determination is deemed justified, and there is no illegality such as violation of the rules of evidence or misapprehension of the law regarding the calculation of the amount of consolation money, as alleged in the grounds of appeal. This ground of appeal is without merit.
2. Having found the facts regarding the division of property as set forth in its judgment based on the evidence cited, the court below determined that, in light of the various circumstances set forth in its reasoning, and in view of the title relationship, current status, formation process, and utilization status of each of the real properties and debts in this case, the most appropriate method of property division would be—rather than division in kind or division through auction—to definitively vest in the Defendant the ownership of each of the above real properties, the borrowed money debt, and the lease deposit debt owed to the tenants of the Guri-si real property, and to order the Defendant to pay a sum of money corresponding to the value of the portion attributable to the Plaintiff's contribution. As to the ratio of division of property in this case, the court below determined it appropriate to set the amount at KRW 90,000,000, which is slightly less than 1/2 of KRW 186,000,000 (the amount obtained by deducting the passive property, i.e., debts, from the active property), taking into account all circumstances revealed in the pleadings of this case, including the parties' ages and occupations, standard of living, income, financial status, the circumstances leading to the breakdown of the marital relationship, and the degree to which the Plaintiff and Defendant contributed to the formation of the property subject to division. In light of the record and the relevant evidence, this determination is deemed justified, and it cannot be said that there is any illegality such as violation of the rules of evidence, or misapprehension of the law regarding the method of division, the determination of the property subject to division, and the calculation of the ratio of division of property, as alleged in the grounds of appeal. These grounds of appeal are all without merit.
3.
A de facto marriage (사실혼) refers to a case where there is an intention to marry between the parties, and objectively, in terms of social norms, there exists the substance of a marital life sufficient to recognize a communal life as husband and wife in terms of family order. Therefore, among the provisions of the Civil Act (민법) concerning legal marriage, those provisions premised on the report of marriage cannot be applied by analogy. However, the provisions concerning division of property (재산분할), which have the meaning of liquidation of marital property, are recognized in light of the substance of a communal life as husband and wife, and therefore may be applied mutatis mutandis or by analogy to a de facto marital relationship as well (see this Court's Decisions 93Meu447, 454, decided August 27, 1993; and 93Meu560, decided November 23, 1993).
Accordingly, the determination of the court below that, in the case where the de facto marital relationship in this case has been dissolved, one party may claim division of property against the other party, is justified, and there is no illegality such as misapprehension of the law regarding division of property, as alleged in the grounds of appeal.
4. Since the provisions of the Civil Act and the Family Litigation Act (가사소송법) concerning division of property apply by analogy to cases of claims for division of property arising from the dissolution of a de facto marital relationship, such cases fall under the exclusive jurisdiction of the family court having jurisdiction over the general venue of the opposing party, pursuant to Article 839-2(2) of the Civil Act, Article 2(1)(b), Category (2) Family Non-Contentious Case (마류사건) No. 4, and Article 46 of the Family Litigation Act.
According to the record, since the Defendant's address is located in Injang-dong, Guri-si, this case concerning consolation money, etc. arising from the dissolution of the de facto marital relationship falls under the exclusive jurisdiction of the Uijeongbu Branch of the Seoul District Court, pursuant to Article 2(1)(b), Category (2) Family Non-Contentious Case No. 4, Article 14, and Article 46 of the Family Litigation Act. Meanwhile, it is clear from the record that the court of first instance in this case was the Uijeongbu Branch of the Seoul District Court, and therefore there is no illegality of misapprehending the law concerning jurisdiction. This ground of appeal is without merit.
5.
Since a retirement allowance (퇴직금) constitutes deferred compensation for labor provided during the marriage, it becomes part of the property of the couple during the marriage, and in a case where one spouse has already received and is holding a retirement allowance or similar money at the time of divorce after having worked at a workplace, such money may be made subject to liquidation.
According to the record, it can be seen that the Plaintiff retired from Korea I.B.M. on September 1, 1991, immediately after beginning to live separately from the Defendant, and received a retirement allowance of KRW 13,847,361 (record, page 57). Therefore, the said retirement allowance amount constitutes property subject to division of property. Although it was an error for the court below not to have considered the said retirement allowance in determining the amount of division of property, in light of the record concerning the various circumstances considered by the court below in determining the amount of division of property, the amount does not appear to be so excessive as to be unlawful. Accordingly, this does not affect the outcome of this case. This ground of appeal is without merit.
6.
With respect to family non-contentious proceedings (가사비송절차), the provisions of Part I of the Non-Contentious Case Litigation Procedure Act (비송사건절차법) apply mutatis mutandis unless otherwise specially provided in the Family Litigation Act, and in non-contentious case procedures, unlike in civil litigation, the court does not rely solely on the parties' pleadings but, under its own authority and responsibility, collects the materials that form the basis of its judgment, i.e., proceeds under the so-called principle of ex officio investigation (Article 34 of the Family Litigation Act, Article 11 of the Non-Contentious Case Litigation Procedure Act).
Accordingly, although the Plaintiff withdrew, in the preparatory brief dated September 12, 1994, the previous assertion including Real Property No. 2 in the attached list to the judgment of the court below (a store of 2.269㎡ on the first floor of Building D among the buildings of two stories located on the land of 7.5/1,645.5 shares out of 1,645.5㎡ of land located at 850-6 Siheung-dong, Guri-si) as one of the properties subject to division of property, the court is not bound by the Plaintiff's assertion and may, of its own accord, conduct a factual investigation into what constitutes the subject matter of division of property and include such property. Therefore, the measure of the court below in including the above real property as subject to division of property is deemed justified, and it cannot be said that there is any illegality of misapprehending the law concerning the scope of property subject to division. This ground of appeal is without merit.
7. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices involved.
Justice Jeong Gwi-ho (Presiding Justice), Kim Seok-su, Lee Don-hee, Lee Im-su (Justice in charge)