중국 혼인법의 기본원칙

우병창(禹柄彰) 강원대학교 비교법학연구소 2012 江原法學 Vol.35 No.-

일본의 가정폭력에 대한 대처와 그 동향

우병창(Byoungchang Woo) 한국가족법학회 2006 가족법연구 Vol.20 No.1

  This paper reviews which legal and institutional measures Japan has employed against domestic violence and examines the consequences and recent tendencies of such measures, in three categories-child abuse, violence in married couples, and violence against the elderly. This study also includes a speculation on the necessity of further effort to prevent recurrences of domestic violence.<BR>  Domestic violence is drawing much attention in Japan recently, and many case studies and investigations revealed the actual state of existing domestic violence. Research shows that domestic violence has serious effect on the victim’s physical and mental health. Diverse institutions and shelters are expanding their aid activities throughout the nation.<BR>  The first half of this essay surveys the history of welfare policies of Japan for children, women, and the elderly, and addresses the problems. In the latter half I focus on domestic violence, classifying it into the three categories mentioned above. I then examine the related legal amendments and consider further preventive measures for the future.

중국 혼인법상 부부재산관계 -부부재산제와 이혼시 재산분할을 중심으로-

우병창 ( Byoung Chang Woo ) 안암법학회 2012 안암 법학 Vol.0 No.37

Regarding the problems of the division of matrimonial property on divorce, the couples` rights and interests are protected under the Chinese Family Law. But it is should be required to identil5` the specific property, which is the community property, in question on the revised law. In a concrete case of the division of property, they follow the Supreme People`s Court`s ruling. When couples divorce, the community property that should be dealt with by mutual consent according to some principles, the equality of the sexes, the consideration to the interests of children and women, the profitable principle for the life and demand, the regard to one party who has no negligence, and the principle which has no damages to the interests of the country, organization, and others. If the agreement is failed, the people`s court should confirm the scope of the community property on the basis of the concrete circumstances. The community property is divided equally, when marital property contract is not made either verbally or in writing. It is division in kind and cash, and the price compensation that the specific measures for the division of property. In case of the division of the community property, the people`s court should mediate between two parties in accordance with an agreement between both spouses. Furthermore, the mediation should be legal and complied with the principle of a voluntary approach. If the mediation is invalidated, the court will give a verdict according to the circumstances, which is about the conditions of the community property, the length of a marriage, the actual demands of production and real life, the source of property and so on. However, the several property, husband and wife own each one`s special property individually that has been owned, inherited, and given, also the things are prepared before marriage, and that is acquired during marriage in the name of each one. Also the each spouse`s clothes, household items and general tools and materials, which is purchased cooperatively during marriage, these are belonged to each one`s special property. And the personal property, which is agreed to one`s ownership between both sides before the marriage or during the marriage, it belongs to each one`s property when the agreement is legal according to that agreement. About discharge an obligation, the community debt may be acquired to be paid cooperatively, if the community property is short of reimbursement or the property is belonged to each one`s ownership, it will be paid by agreement of both spouses. On the other hand, personal debt, according to the laws in 1980, each spouse`s debt is paid by the person who is responsible for the debt itself but the revised law in 2001 is repealed this provision, however the consequence are the same.

가족법상 입양에 관한 연구-양자법의 개선을 위한 현행법의 검토와 입법론 제안-

우병창 한국가족법학회 2002 가족법연구 Vol.16 No.2

과학기술의 발전과 일본가족법의 대응

우병창(Byoung Chang Woo) 한국가족법학회 2007 가족법연구 Vol.21 No.3

  Recently assisted-reproduction medical treatments have been consistently increased in Japan. Thus many issues concerning the medical service have been raised. In a case, a doctor was barred from membership due to his assisted-procreation practice, against the guidelines of Japanese obstetrics and gynecology association. In addition even after his membership deprivation, the doctor kept the debated medical practice.<BR>  Regarding the assisted-reproduction medical treatment, the Biological Father Law Association mentions that the guidelines of Japanese obstetrics and gynecology association have limitations on regulation of the new medical area. Consequently it is recognizable that designing new systems for advisable assisted-procreation by donors of sperm, egg cells, and embryos are necessary. It also includes regulating of commercial activities, such as a sale of an organ or a birth to a surrogate mother. In this respect, the Biological Father Law Association concludes that proposing new systems, including making new statutes or amending related laws, are inevitable.<BR>  Finally it shows that science and technology developments raise new issues of application and interpretation of family law. It also indicates that there are limitations on solving these problems through current statutes. Thus it is time to make new statutes or amend current laws for this challenge. However, although Korea and Japan started discussions on these issues, they did not reach the final stages as to how to legalize them.

중국 가족법상 부양제도

우병창 한중법학회 2013 中國法硏究 Vol.20 No.-

Support is an economical, psychological and physical assistance of an individual such as family or of a country, for someone whose right to live is threatened and cannot able to sustain independent life by oneself because of natural and social causes. In the Chinese family law, support is defined as a legal duty to support and help between a certain range of relatives. support has the both aspects of right and duty, and the one who receive support becomes the person entitled to get support, and the one who has the responsibility to perform the support becomes the person under duty. There are five cases of support in the Chinese family law. First, a legal duty of parents to support their minor child. This duty cannot be exempted as it is a parental right, and is unconditional duty. Second, a legal duty of child to support his parents. This includes not only economical but also psychological and physical assistance to aged parents. This duty is conditional, but cannot be exempted. Third, support between married couple. This also includes economical, psychological and physical assistance. The legal duty to support between married couple must be performed, and unconditional and cannot be exempted. Fourth, support between brothers and sisters. This also includes economical, psychological and physical assistance. This is conditional. Fifth, support between lineal or collateral ascendant and descendant, lineal relatives by affinity. This is conditional. In Chinese family law, support is considered as something to guarantee the life of the aged and children, patients and disabled people, and the poor and to stabilize family relationship, and to promote the social stability and the demand of the civilization development as the legal effect after the certain relative relation is legally established.

이탈리아 민법상 혼인의 효과

우병창(Woo Byoung-Chang),마르타 짐바르도(Marta Zimbardo) 조선대학교 법학연구원 2012 法學論叢 Vol.19 No.1

이 논문의 목적은 한국에 잘 알려져 있지 않은 이탈리아 법제의 일부로서 민법상 혼인의 효과에 대한 소개이다. 그 주요 내용은 크게 두 부분으로 나누어지는데 첫부분에서는 혼인의 일반적 효력을 살펴보고자 한다. 이 부분에서는 「이탈리아 민법」 제1편 제6장 제4절에 규정된 혼인에 따른 권리와 의무에 관하여 살펴본 후에 기타 일반적인 효력에 관하여 설명한다. 「이탈리아 민법」 제143조(배우자 상호 사이의 권리와 의무)에 의하여 부부는 서로 충실, 정신적ㆍ물질적 부양, 가족의 이익을 위한 협조, 동거의무를 지고, 또한 배우자 쌍방은 각자의 재산 및 직업이나 가사수행능력에 비례하여 가족의 필요에 대하여 분담하여야 할 의무를 진다. 그리고 「민법」 제147조에 의하여 배우자 쌍방은 혼인에 의하여 자녀의 능력, 성향 및 포부를 참작하여 자녀의 부양ㆍ가르침ㆍ교육의 의무를 진다. 두번째 부분은 혼인의 재산적 효력(즉 혼인시 부부재산제도)에 관한 부분이다. 이탈리아에서는 1975년에 가족법(민법)의 개정을 통하여 부부공동재산제가 법정부부재산제로 채택되었다. 이탈리아의 부부재산제도 또한 세부적으론 약정재산제와 법정재산제의 두 가지로 나뉘는데 약정재산제는 부부가 반드시 법에 구속되는 것이 아니라 자유롭게 계약을 체결하여 부부 사이의 재산관계를 정할 수 있는 것으로서 부부는 법률상 규정된 부부재산계약제 중의 하나를 선택하여 쌍방의 재산에 관한 약정을 할 수 있다. 민법상 규정된 부부재산계약의 종류에는 부부별산제(separazione dei beni), 계약공동제(comunione convenzionale), 가족자금(fondo patrimoniale) 등이 있다. 끝으로 혼인의 효과에 관한 이탈리아 법제의 특징을 정리ㆍ평가함으로써 결론에 대신하고자 한다. This paper aims to provide an overview of the effects of marriage in the Italian Civil Code. Effects of marriage can be divided into personal and pecuniary ones. The first part of this article discusses the personal effects, including the rights and duties between husband and wife deriving from marriage, the effect of marriage on parental duties, the effect of marriage on a woman’s surname and other indirect effects. Personal effects mostly concern the rights and duties arising from marriage. Both spouses acquire the same rights and assume the same duties. These duties, that are fidelity, material and mora1 support, cooperation and cohabitation, are mutual and both husband and wife, according to their means and their ability for professional work or housework, must contribute to the family’s need (Art. 143 of Civil Code). Regarding the effect of marriage on duties towards children, parents have thc duty to maintain, instruct and educate their children, taking into account their capacity, natural inclinations and aspirations (Art. 147 of Civil Code). They must provide for these needs according to their means and their ability for professional work or housework, and if they do not have enough means, the ascendants, both legitimate and natural, must provide them (Art. 148 of Civil Code). The second part of the paper aims to introduce thc pecuniary effects of marriage, that is the matrimonial property system. In Italy through the 1975 family law reform, the community property system became the legal matrimonial property system. According to it, both spouses own together all properties acquired during the marriage (with the exception of personal assets), whether acquired together or separately. Revenues from the personal assets of each spouse and separate earnings collected but not consumed at the time of dissolution of the community and business enterprises established after the marriage and carried on by both spouses are also included (Art 177 of Civil Code). Personal assets of the spouses include assets acquired before the marriage or acquired during marriage by gift or succession, items for personal use of one of the spouses, assets which serve the exercise of the profession of one of the spouses, damages and pensions obtained as compensation for the total or partial loss of the ability to work, and assets acquired by the transfer or exchange of personal propriety if expressly declared (Art. 179 of Civil Code). The community property system is the legal system and it applies by default. All properties acquired, together or separately, during the marriage (with the exception of personal effects), belong jointly to both spouses. However, the spouses can choose, also after the celebration of the marriage, other regimes. They can prefer the separate property system, and doing so, they will own separately all property, pre-marital and marital (Art. 215 of Civil Code). They can also modify, with some restrictions though, the provision of community property regime. Besides, both spouses, only one of them or even a third party, can allocate some particular assets exclusively to the family's needs, establishing a family trust fund (Art. 167 of Civil Code). The last part of the paper brief1y discusses the strengths and weaknesses of the Italian effects of marriage relating system.

조선조 담보제도 연구

우병창 한국비교사법학회 2002 비교사법 Vol.9 No.4

현행 민법상 유류분제도 소고

우병창 한국가족법학회 1996 가족법연구 Vol.10 No.-

민법상 친자관계의 결정

우병창 단국대학교 법학연구소 2018 법학논총 Vol.42 No.1

Paternity is a relationship based on love and kinship, unlike a propertyrelationship. The current legal system provides various ways to determine paternity. What standards would be used to determine paternity between father(or mother) andchild? Will ties of blood continue to be a basis for relationship between father(ormother) and child? Or will it extend the case if left to the intention of parties? This paper will consider a presumption as husband’s child, an affiliation and alegitimation, decisions of paternity by a artificial insemination and a surrogate mother,an existence of paternity and legal principles of lapse, revisions of the Korean Civil Act. The 2017 revision of the Korean Civil Act, while reflecting the gist of thedecision of incompatibility with the Constitution which was made by theConstitutional Court on April 30, 2015, balanced blood relations, intention and thebenefits of children. However, if a marriage is virtually broken and a child is givenbirth by a non-legal spouse, then is there a presumption as husband’s child? In the past, blood relation was the only option for a parent to make a decision. Due to the development of science and medical technology, it has lost its ground. Inmodern societies, blood is not the only basis of paternity. Paternity must bedetermined comprehensively, taking into consideration the intention of the partiesconcerned as well. The Korean Civil Act was revised in 2017 in accordance with thedecision of the Constitutional Court in 2015, but the problems so far have not beenfully resolved. Some topics(a AID method of an artificial insemination, a surrogate mother and many others) still remain as problems. It is not desirable for a father(or mother)–child relationship decision to be madebased more on science in light of the trends in the morden family law emphasizingthe welfare of children. A father(or mother)–child relationship based on genetics caneasily be shown in scientific ways, but that is not the best way to solve the legalproblems arising from the paternity relationship. 친자관계는 일반적인 재산관계와 달리 ‘사랑’과 ‘혈연’을 기초로 하는 생활관계이다. 현행 법제도는 친자관계의 인정을 위한 다양한 방법을 규정하고 있다. 과거에는 혈연만으로 친자관계를 손쉽게 결정할 수 있었으나. 과학과 의료기술의 발달은 이를 점점 곤란한 지경에 빠지게 하고 있다. 현대사회에서 친자관계는 더이상 혈연만으로 결정할 수는 없게 되었고, 관계자의 의사까지 고려하여 종합적으로 결정되어야 한다. 2015년 헌법재판소의 결정에 따라 2017년에 민법이 개정되었지만 그간의 문제점이 완전히 해소된 것은 아니다. 부자관계의 결정이 과학에 대한 의존도가 늘어난 것은 ‘자녀의 복지’를 중시하는 현대가족법의 경향에 비추어 보았을 때 바람직한 것은 아니라고 생각한다. 과학적 방법으로 유전적 부자관계는 쉽게 증명할 수 있겠지만 부자 사이의 법적 문제까지도 해결하는 가장 좋은 방법은 아니라고 본다. 종전처럼혈연에 의해서만 부자관계를 결정할 것이 아니라 자녀(아동)의 권리보장과 과학의 발달을 고려하여 보다 다양한 기준과 방식에 의해 부자관계를 결정해야하는 경우가 늘어날 것으로 예상되지만 어느 경우이든 부자관계의 결정을 좌우하는 최고의 기준은 ‘자녀의 복지’가 되어야 할 것이다.