Open Decision Ledger · Family & inheritance law
Property value fixed at dissolution, later events, and discretion over consolation money
Supreme Court, Sept. 14, 2023, 2023Meu10519 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 사실혼관계해소로인한위자료및재산분할
Official text on the National Law Information Center
Question
In a property division on the dissolution of a de facto marital relationship, must the property and its value be fixed as at the date of dissolution, and may external or later events up to the close of oral argument be taken into account, and is the amount of consolation money for mental suffering a matter left to the trial court's own discretion?
Holding
The Court held that the property and its value must be fixed as at the date the de facto marital relationship was dissolved, here 28 November 2018, and that external or later events arising on property formed and kept by joint effort during the relationship may be taken into account only where special circumstances make it manifestly at odds with the purpose of the institution. It also held that the amount of consolation money for mental suffering is a matter the trial court may fix in the exercise of its own discretion, weighing all the circumstances. Both appeals were dismissed.
Points at issue, verbatim
사실혼 해소를 원인으로 한 재산분할에서 분할의 대상이 되는 재산과 액수를 정하는 기준 시기(=사실혼이 해소된 날)
Unofficial English translation
The reference date for determining the property and amount subject to division in a division of property on the ground of dissolution of a de facto marriage (= the date on which the de facto marriage was dissolved)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용 중 원고의 상고로 인한 부분은 원고가, 피고의 상고로 인한 부분은 피고가 각 부담한다.
Unofficial English translation
All appeals are dismissed. Of the costs of the final appeal, the portion attributable to the plaintiff's final appeal shall be borne by the plaintiff, and the portion attributable to the defendant's final appeal shall be borne by the defendant.
Form of the test
Elements stated Stated in the decision
사실혼 해소를 원인으로 한 재산분할에서 분할의 대상이 되는 재산과 액수는 사실혼이 해소된 날을 기준으로 하여 정하여야 한다.
Unofficial English translation
In a division of property on the ground of dissolution of a de facto marriage, the property and amount subject to division must be determined based on the date on which the de facto marriage was dissolved.
Factors
- 사실혼 해소를 원인으로 한 재산분할에서 분할의 대상이 되는 재산과 액수를 정하는 기준 시기(=사실혼이 해소된 날)
- 혼인 중 공동의 노력으로 형성·유지한 부동산 등에 발생한 외부적, 후발적 사정이 있는 경우
- 이를 분할대상 재산의 가액 산정에 참작할 수 있는지 여부(한정 적극)
- 불법행위로 입은 정신적 고통에 대한 위자료 액수 결정이 사실심법원의 직권에 속하는 재량 사항인지 여부(적극)
Unofficial English translation
• The reference date for determining the property and amount subject to division in a division of property on the ground of dissolution of a de facto marriage (= the date on which the de facto marriage was dissolved)
• Where there exist external, subsequent circumstances that have arisen in relation to real property and the like formed and maintained through the joint efforts of the parties during marriage
• Whether such circumstances may be taken into account in calculating the value of the property subject to division (qualified affirmative)
• Whether the determination of the amount of solatium for mental suffering arising from a tort is a matter within the discretion of the court of fact ex officio (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2023. 7. 13. 선고 2017므11856, 11863 판결(공2023하, 1467)
Unofficial English translation
Supreme Court Decision 2017Meu11856, 11863 decided July 13, 2023 (Gong 2023 Ha, 1467)
Decisions referred to
[1] 대법원 2023. 7. 13. 선고 2017므11856, 11863 판결(공2023하, 1467) / [2] 대법원 1999. 4. 23. 선고 98다41377 판결(공1999상, 998), 대법원 2002. 11. 26. 선고 2002다43165 판결(공2003상, 211)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What later circumstances are special enough that attributing the resulting gain or loss to one side would be manifestly at odds with the fair clearing and distribution of the couple's joint property?
A later decision that accepts or rejects such circumstances in a case following Supreme Court Decision 2017Meu11856, 11863, or an amendment to Article 839-2 of the Civil Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 22 December 2022 (2022Reu21613), fixed the value of the property subject to division as at 28 November 2018, the date the de facto relationship was dissolved, and on that basis ordered a division. Weighing the acquisition of the property, the parties' respective contributions to forming, keeping and increasing it, the course and length of the relationship, their ages, occupations, income, economic standing and support factors, it set the plaintiff's share at 30 per cent. It also found that the parties had not expressly agreed not to sue on, nor had the plaintiff waived, claims for damages including consolation money; that the written agreement was an unfair transaction exploiting the defendant's knowing use of the plaintiff's desperate and careless state, with a gross imbalance between the performance and counter-performance, and therefore void under Article 104 of the Civil Act; and it ordered the defendant to pay consolation money.
Supreme Court standard: The Supreme Court found no error on any ground. On the value, it held that the court below had not violated the rules of logic and experience, overstepped the limits of free evaluation, breached the principle of equality or misread the law on fixing value at the dissolution of a de facto relationship. On the 30 per cent share, the no-suit agreement and the amount of consolation money it likewise found no misreading and no departure from free evaluation, and it rejected the grounds disputing the establishment of the relationship and the cause of its breakdown as challenges to the trial court's exclusive findings of fact. It unanimously dismissed both appeals.
Distinguishing conditions
- A case in which no special circumstances make attributing the gain or loss to one side manifestly at odds with the fair clearing and distribution of the couple's joint property, so that the value stays as at the date of dissolution.
- A ground of appeal that merely disputes how the trial court chose between items of evidence or found facts, since such matters belong exclusively to the court below.
- A challenge to the amount of consolation money that does not show a departure from the rules of logic and experience or a misreading of the law, since the amount lies in the trial court's own discretion.
Record verification notes
Establish first the date the relationship dissolved and the date oral argument closed in the court below, since those two dates frame both the base value and any later event. Then test each external or later circumstance against the purpose of fair clearing and distribution, before turning to the contribution and support factors that set the share. Keep the agreement separate: whether it bars suit, whether it was unfair under Article 104, and how much consolation money was ordered are three distinct questions.
From the official text
Points at issue
[1] 사실혼 해소를 원인으로 한 재산분할에서 분할의 대상이 되는 재산과 액수를 정하는 기준 시기(=사실혼이 해소된 날) / 사실혼 해소 이후 재산분할 청구사건의 사실심 변론종결 시까지 사이에 혼인 중 공동의 노력으로 형성·유지한 부동산 등에 발생한 외부적, 후발적 사정이 있는 경우, 이를 분할대상 재산의 가액 산정에 참작할 수 있는지 여부(한정 적극) [2] 불법행위로 입은 정신적 고통에 대한 위자료 액수 결정이 사실심법원의 직권에 속하는 재량 사항인지 여부(적극)
Unofficial English translation
[1] The reference date for determining the property and amount subject to division in a division of property on the ground of dissolution of a de facto marriage (= the date on which the de facto marriage was dissolved) / Whether, where there exist external, subsequent circumstances that have arisen in relation to real property and the like formed and maintained through the joint efforts of the parties during marriage in the period between the dissolution of the de facto marriage and the close of oral argument in the fact-finding court in the case of a claim for division of property after the dissolution of the de facto marriage, such circumstances may be taken into account in calculating the value of the property subject to division (qualified affirmative) [2] Whether the determination of the amount of solatium for mental suffering arising from a tort is a matter within the discretion of the court of fact ex officio (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고비용 중 원고의 상고로 인한 부분은 원고가, 피고의 상고로 인한 부분은 피고가 각 부담한다.
Unofficial English translation
All appeals are dismissed. Of the costs of the final appeal, the portion attributable to the plaintiff's final appeal shall be borne by the plaintiff, and the portion attributable to the defendant's final appeal shall be borne by the defendant.
Provisions referred to
[1] 민법 제839조의2 [2] 민법 제751조, 제763조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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