離婚으로 인한 財産分割請求權의 法的 性格과 相續의 認定 與否에 대한 法理 再檢討(上) = A restudy on the legal character of the claim for division of the matrimonial property at the time of divorce and the acceptance or rejection of succession to the right of the claim(1)

다국어 초록 (Multilingual Abstract)

  This article deals with the legal character of the claim for the division of matrimonial property, and with the possibility of succession on the property divided. The division of matrimonial property is a very serious problem to married couple at the time of their dissolution, and practically a large number of judicial precedents in connected with this problem have accumulated already. Therefore this research divides two articles for the arrangement of various theory and precedents. In this serial number, I publish the first article which includes general contents on the right of claim for division of the matrimonial property, legislative background of provision in connected with the right in the Korean Civil Code(the fallow as KCC), and matters on legal character and succession of the right of claim. The second article will be published in next serial number, and it should include the decision of subject, concrete method, standard and ratio for division of matrimonial property, especially in judicial precedents, the matters concerned with the way to distinguish the portion of property which is able to succeed from is not able to.<BR>  I think that several following points have to make a study further detail in this article.<BR>  The origin of family is a that of property, and the relation of husband and wife is the same means as the economical organization. The matrimonial property is the essential qualities of family life, and it is a very important matter of the family law who possess the property have been acquired in married period. In spite of that matter"s seriousness, in Korea, for some past time, the problem of properties possession have not been discussed at all. As a matter of course, the matrimonial properties that even had been possessed to wife since the wedding time and have been acquired in married period belong to the husband in essence as well as in outward form, because in a large percentage of married couple, most of wives have not economic and social independence from husband"s management and guardianship under the "Patriarchal System".<BR>  But the present days, the legislative matter to regulate the matrimonial property rise to the surface by reason of improvement of wife"s economic position in family. Therefore the KCC has "the Matrimonial Property System" ever since the time of its establishment, and it separately had provisions that is able to regulate the possession of properties from contract of husband and wife, and otherwise to regulate by statutory. The former calls "the Contractual Property System"(KCC Sec. 829) and the latter calls "the Legal Property System"(KCC Sec. 830 and the following). Merely in Korea, the utilization of Contractual Property System is unsatisfied, and therefore in general we obey the Legal Property System provided by the statute law. According to the KCC, it provides that properties have been possessed since the wedding time or acquired in married period by a party belong to that party exclusively(Art.830 Para.1), provides that in principle these peculiar properties are possessed, took charge and shall be able to dispose by each one(Art.831), and provides that the indefinite properties to whom to belong is presumed the co-ownership of husband and wife(Art.830 Para.2).<BR>  Even though the matrimonial property is based on "the Separate System", it is not serious problem that the properties of a married couple to whom to belong or to be registered at the happy time of husband and wife. However it is necessary to arrange the properties acquired collaboratively by a married couple, at the time of dissolution of marriage such as divorce. At this time, the right of claim for division of the matrimonial property have been endow to each of husband and wife. On the KCC, it had not been mentioned at the time of the establishment of Code in 1960, but the provision of Article 2 of 839 about it was inserted n

목차 (Table of Contents)

• Ⅰ. 序說
  Ⅱ. 財産分割請求權의 趣旨와 法的 性格
  ABSTRACT