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이제우(Lee, Je-Woo) 한국가족법학회 2015 가족법연구 Vol.29 No.3
Comparative law analyses on marital property regimes, and community property in particular almost always focus on a select number of legal systems, such as those of France, Italy and certain American states. It is unfortunate that Russian family law which adopted the community property regime in 1926 is rarely, if ever, mentioned in such studies. However the fact that in Russia spouses have for almost a century enjoyed joint ownership of property acquired during marriage, should not be neglected. On the contrary, given that Russian family law takes its roots from socialist family law, which is still prevalent in many parts of the world, including former Soviet republics as well as North Korea and China, it deserves to be the subject of extensive research. In the present work the author examines the theoretical foundation and historical background of community property in Russia. Special focus is placed on identifying the rationale behind the legislation of the revolutionary lawmakers of the first half of the 20th century in Soviet Russia. No less important is the emphasis on how Russian family law influenced the marital property regime in North Korea. The present work also studies the current Russian property regime between spouses. Both doctrine and case law are explored thoroughly. Such research reveals among other things that the balance between the independence of spouses and the communal nature of marriage, is skewed in favor of the latter. Such a conclusion may have important implications for the marital property regime in Korea.
이소은(Soeun Lee) 한국가족법학회 2023 가족법연구 Vol.37 No.2
The amendment of Japanese inheritance law, promulgated on July 13, 2018 and inacted on July 1, 2019, has changed a wide range of legal relations with regard to imperative inheritance. The most remarkable change in imperative inheritance law is Article 1046 of Japanese Civil Code which stipulates that the heir who may claim the forced heir’s right shall claim restitution in money. Under the new law, the heir who claimed the forced heir’s right no longer has the right in rem over the property given to a third person. This article reviews each provision of Japanese imperative inheritance law and the academic discussion in Japan thereof. Based on the review, I suggest amendment of some provisions of the Korean Civil Code (hereinafter “KCC”). More specifically, I suggest the following amendments: (a) the range of the heir who may claim the forced heir’s right shall be reduced to the spouse and children of the deceased; (b) the forced heir’s right shall be constructed as monetary claim; (c) the range of donation that becomes the subject of the said right shall also be reduced in terms of time period; (d) the order of restitution shall be stipulated in KCC; (e) the potential heirs shall be able to abandon the said right in advance.
송효진(Song, Hyo-Jean) 한국가족법학회 2012 가족법연구 Vol.26 No.2
With the rapid increase in number of marriage migrant women and migrant workers flowing into Korea, we have now in effect entered into a multi-cultural society. As the number of multi-cultural families increases, the number of children of these families is also increasing. Accordingly, Korean society is more and more faced with various issues related with these children. According to Statistics Korea’s data, in 2010, the number of divorces of multi-cultural families accounted for 9.6% of the total number of divorces in Korea. According to Seoul Family Court, in May 2011, the proportion of divorce suits of multi-cultural families takes up more than 40% of the total of divorce suits filed at the Court over the last three years. Statistics Korea’s data shows that the number of children of divorced multi-cultural families was only 500 in 2004. However in 2010, the number reached around 1,500, which is more than a threefold increase. This, even, is only the number identified in official statistics. The number of children of illegal immigrants or foreign children who moves to Korea after their mother or father’s remarriage with a Korean national is likely to have been missed out in the official numbers. So, if we count this in, the number is much bigger than the officially identified. What is more, since more than 10,000 multi-cultural families are divorcing each year, it is expected that the number of children of these divorced families will continue to increase. In this paper, I will mainly touch upon what issues there are related with Korea’s Civil Code and Nationality Act when ensuring human rights and welfare of children of broken up multi-cultural families. Firstly, the issue of designation of person with parental rights and primary fosterer of children of divorced multi-cultural families often comes with hard case such as Chuncheon District Court ruling(2002. 11.15. 2002 De-Dan636 Ruling). In this case court gave custody of the child to a violent father instead of a mother illegally living in Korea who can be deported any day. However, if we consider the fact that she had to choose to escape with her two year-old baby from her violent husband of common law marriage, we cannot but question whether the court’s decision to designate the violent father to be the person with parental right and primary fosterer is reasonable and right for the child’s wellbeing. This case clearly shows the social issues of multi-cultural family breakdown and difficulties in protecting children of these families. Moreover, especially in many cases of divorced multi-cultural families that are poor, children are left out of social help. They may be left at a child-care center in Korea. They may live as an illegal immigrant in the home country of his or her migrant parent or may be put at a child-care center in that country out of reach and protection of the Korean consul in that country. We have no idea of the number of these children, those who are out of legal protection and system. We do not have any provisions or legal system that forces the divorced parents to carry out their obligation of child-rearing and to screen whether this is properly done. This is not only a task in addressing multi-cultural family issues, but also a fundamental task for protecting our children in average Korean divorces. Secondly, we should consider the visiting right of children of the divorced multi-cultural families. The visiting right guaranteed by the Korean Civil Code is not only a right of the parent but also that of the children. Article 9 of “Convention on the Rights of the Child”, which Korea adopted, stipulates that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.”
최봉경(Bong-Kyung Choi) 한국가족법학회 2011 가족법연구 Vol.25 No.2
Der Aufsatz handelt von einigen familienrechtlichen Problemen i.b.a. multikulturelle Familie. Einer Entscheidung von koreanischen H?chstgerichthof(unten abgek?rzt als KHG) zufolge soll eine internationale Ehe nichtig sein, wenn die wirkliche Wille nicht vorhanden sei, um eine eheliche Lebensgemeinschaft zu gr?nden. In dem Fall handelte es sich um eine Ehe mit einer Frau aus Philippine und einem Mann aus Korea und die Philippine hat in etwa. einem Monat nach der Eheschliessung spurlos verschwunden, nur einen Brief hinterlassen mit dem Inhalt, dass sie nur zum Zweck des Berufserwerbs in die Ehe mit ihm eingegangen sei. Mit Abstand, dass die Entscheidung rechtspolitisch gut zu begr?nden ist, hat der Verfasser diese als ?berzeugungskr?ftig gefunden. Solcher Fall ist selten zu begegnen und strict zu unterscheiden mit sog. Scheinehe. Er verfasst weiter die Gr?nde f?r die Aufl?sung der multikulturellen Familie und deren Charakterisriken. Nicht nur gibt es viel institutionell zu verbessern, sondern auch sollte man sich rechts-polotisch um Anpassung und Koexistenz bem?hen, wobei er darauf Schwerpunkt setzt, um m?glichst stabile Politik f?r die Zukunft zu treiben. Zum Schluss will er betonen, dass die Frage der Zuwanderung und die multikuturelle Familie keine Besonderheit, eher die Zukunft aller Nationen betrifft, von da her alle Kultur vertreten durch vor allem Sprache zu respektieren ist.
가족법에 있어서의 ‘당신도’라는 코드의 작동과 그에 대한 도전 : 다문화가족과 동성혼
오정진 한국가족법학회 2012 가족법연구 Vol.26 No.3
This paper is written on the base of the one of methods and theories of Niklas Luhmann. According to Luhmann, Legal system has codes which cognize environment and differentiate illegal/legal, non-adaptive/adaptive and include selectively only the latter to sustain and evolve autopoietic system itself. And ‘You, too’ is one of the most popular codes. In so many cases, ‘You, too’ code is operated to apply same statutes to pending similar case supported by equality. In the field of Family Law of Korea, especially regarding gender equality, there have been many cases ‘You, too’ code used. And recently multicultural family and same-sex marriage have become main objects of that code. Firstly, in Korea, multicultural family is constructed by international marriage, between mostly Korean man living in rural communities and foreign woman, which is encouraged by government that you, rural bachelor, can get married, too. Secondly, although same-sex marriage is not yet possible in law, such marriage is argued that homosexual partners have equal rights of marriage. But multicultural family and same-sex marriage composed by ‘You can marry, too’ have severe limits; Multicultural family assumes existing normal partriarchal family so there are problems such as family violence intact and in even worse human rights violations and just assimilation to Korean family is pushed without understanding multiculturalism. And in so far as same-sex marriage is claimed legal one there are little room for alternative intimate relationship. In that manner, with the support of sameness code, family law system will still survive in spite of many challenges and we might live in that cage for long time.
Matrimonial Property Law in China: Developments, Controversy and Solutions
Ran Qiyu 한국가족법학회 2013 가족법연구 Vol.27 No.3
중국에서 부부재산법은 혼인법을 개정할 때마다 뜨거운 논쟁의 주제가 되어 왔다. 1950년 중화인민공화국 혼인법이 제정된 이래 부부재산법은 혼인 중 부부 쌍방이 이룩한 재산에 대한 제도 제정, 사유재산 범위의 명확한 규정, 부부공동재산제도의 점진적인 개선, 불이익을 받는 배우자 보호제도 제정 등 많은 발전을 이루어 왔다. 2011년 발표된 중국대법원의 혼인법 적용에 대한 판례 평석 Ⅲ은 학자와 법조인 사이에서 부부재산법 해석에 있어 뜨거운 논쟁을 촉발했는데 특히 논란이 되었던 부분은 부부재산법에 따른 여성을 포함해 취약 계층 보호 방법, 물권법과 거래에 관련 규정으로 부터의 부부재산법 제외 범위, 대법원의 사법주의 한계였다. 본 연구는 중국 내 부부재산법에 관한 논란을 해결할 수 있는 해결방안으로 남녀 간의 평등한 법적 지위 신장, 가족과 부부의 특수성 보호를 위해 부부공동재산권 및 거래에 관한 규칙의 제한, 부부와 가족의 특정한 이익 보호를 위한 개인의 권리 제한, 대법원의 사법주의 제한을 제시한다.