韓國家族法學會의 規約·規程 외

편집부 한국가족법학회 2009 가족법연구 Vol.23 No.2

러시아가족법상 법정부부재산제의 어제와 오늘

이제우 한국가족법학회 2015 한국가족법학회 학술대회 논문집 Vol.2015 No.3

가족법학회 남기고 싶은 이야기

한봉희,이희배 한국가족법학회 2008 가족법연구 Vol.22 No.3

러시아가족법상 법정부부재산제의 어제와 오늘

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.

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.

미얀마 가족법의 현황과 과제

문흥안(Moon, Heung-Ahn) 한국가족법학회 2014 가족법연구 Vol.28 No.2

Myanmar is a multiethnic country composed of 7 administrative divisions and 7 tribal states. The 7 administrative divisions are located in its central area that is populated by Burmans, which is surrounded by the 7 tribes, i.e., Shan, Karen (or Kayin), Rakhine, Mon, Kachin, Chin and Kayah. As Buddhists make up 89% of Myanmar’s population, especially make up the majority of Burmans, Buddhist culture has been being preserved nearly intact. And most areas, excluding the metropolitan area, have been maintaining the features of agrarian society and traditional families. Myanmar’s family law system mingles with the common laws of respective tribes forming Myanmar society, the English Common Law and statutory law. During the colonization of Myanmar, Britons called ‘Dhammathats’ Burmese common law ‘Burmese Buddhist Law.’ Dhammathats are affected by Buddhist ethics but are not puritanical law, and instead, it can be defined as a moral standard covering Burmese Buddhists’ customs, culture, social norms and precedents. Nowadays it has hardly been valid, but its value is further increased in relation to civil affairs such as the division of inherited property, marriage, divorce and religious customs. As regards unstipulated problems, the court adopts equitable customs in interpreting them or holding such trials, whereby Dhammathats keep evolving. In particular, it is still useful for cases that are without precedent. Though Myanmar is a multi-cultural society composed of various tribes, yet Bermans have been central to social development and advancement. Hereat, this study looked into legal norms relevant to Bermans’ marriage, divorce and inheritance, on the authority of ‘Burmese Buddhist Law’, namely Dhammathats. The results showed that Bermans, the majority tribe of Myanmar, live their life in positive norms based on respect for humanity and positive view on afterlife that feature in Buddhist culture. Buddhism, respecting equality, affects Bermans’ family system. They have no family names, and the paternal line and maternal line are equal in their relations. Couple-centered nuclear families are basic to the family system. What is significant is that Myanmar operates the family law system that is more rational and advanced than Korea’s, at least in the adoption of foster sons or the division of property. At the same time, however, there are negative aspects, e.g., religious sexual discrimination grounded on religious values, legal recognition of bigamy in specific stratums, and sexual discrimination in divorce claims for marital infidelity. In addition, there is urgent need to clarify the regulations on marriage and divorce predicated upon de facto marriage and to make legal preparation for marriage with other tribes with the open society in mind. The author suggests Myanmar and Korea conduct a joint study on Myanmar’s customs related to the family system of the whole society including ethnic minorities, expecting to support Myanmar with Korea’s advanced law system and promote legal exchange between two countries. The enactment of Korea-Myanmar family law, based on the joint study, or custom laws is expected to help enact conflict law to solve legal problems among tribes, and moreover, the development of family registration system and the operational support are expected to open up a new chapter in legal exchange between two countries.

남북한가족법의 변천과 남북통일 후 가족법의 미래상

신영호(Shin, Young-Ho) 한국가족법학회 2015 가족법연구 Vol.29 No.3

This paper is an extension of a keynote paper titled “The Impact of Division and Unification on Family Law: Implications from the Experiences of East Asia’s Divided Countries.” It was originally presented August 22 at the 2015 International Conference on the Present and Future of Family Law in South and North Korea: A 70-Year Division, hosted by the Korean Society of Family Law. The paper provides an overview of the development process of family law in South and North Korea since the liberation of the peninsula; explores the elements of North Korea’s family law that should remain in effect, at least temporarily, after the reunification of South and North Korea; and examines whether there are elements of North Korea’s family law that should be embraced in post-reunification consolidated family law. This paper is composed of as follows; The basic order of liberal democracy must be the cornerstone for family law in a unified Korea. This principle squarely contradicts the legal order of family law founded on North Korea’s socialist system. Nonetheless, the understanding of family relations established among North Koreans should not be changed unilaterally. It may be necessary to acknowledge the provisional and transitional effects of family law or inheritance law until the unification of laws has been completed. Even after the completion of the process of unifying family law, however, it is assumed that the estrangement between people of South and North Korea in terms of consciousness, understanding, modes of living and legal practices with respect to various institutions under family law will not easily be resolved, owing to the length of the division of nations. The issue of resolving these divisions will remain even after the consolidation of family law. It may be difficult to declare that unification or consolidation has actually been achieved as long as the problem remains unaddressed.

중국의 「反家庭暴力法」

이상욱(Lee, Sang-Wook) 한국가족법학회 2017 가족법연구 Vol.31 No.3

일본 개정 유류분법의 해석과 적용

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.

분단과 남.북한 친족법의 변화

문홍안(Moon, Heung-Ahn) 한국가족법학회 2015 가족법연구 Vol.29 No.3

This paper examines how the family law has been settled and developed since the emancipation from Japanese colonial era throughout the time where South and North Korea maintain as divided. The study flows from introduction of the topic in Part I to actions taken by South and North Korea against division of Korea peninsula in Part II. Then it further investigates main issues and changes in background through the history in Part III until it reaches to a conclusion in Part IV. Family law in South Korea that played a main role to stabilize patriarchal family system in the capitalistic society since the emancipation of Japanese colonial era is currently operated to support the realization of gender equality that is centered on husband and wife by abolishing the patriarchal family system. On the other hand, North Korean law concerning the family issues, where this paper lays special emphasis, has been managed as a special law for the past 70 years since the liberation as it severed from the capitalism while embracing the socialist system. As a result, most of its legal structure and contents from the past have been succeeded as is into North Korea’s modern family law in 1990’s. Socialist political·economic systems that North Korea accepted support nationalization of production methods which in turn requires abolition of private property system. This turned out to lead the collapse of feudal patriarchal family system by directly impacting the family system that stands on the basis of land. Although it is undeniable that of feudal patriarchal family system positive impact on strengthening female rights, each individual including female is just an expendable for socialist revolution led by the political party and leader in North Korea despite of all the efforts to cut off the vicious circle of customs from the feudal age through the legal enforcement such as “Act on Equality in Gender”. Even the regulation of family law for child benefit promotion is also in fact a way of training foster for communist revolution. One of the purposes of the communist revolution is to dissolve the individual’s family. This ironically has accomplished consolidation of family in North Korea as the measures of revolution resulted in gathering of smaller groups for the revolution. The paper explores in depth to study the reasons and seek solution for ongoing issues caused by the remarriage of North Korean refugees as well. If the integration of family law in North Korea is discussed henceforth under the circumstance where it can’t avoid accepting capitalism, the removal of socialistic views and vestiges of self-reliance ideology should be preceded, focusing on the practical functions of the newly integrated family system. There will be a limit for North Korean people to adapt to South Korean system by merely enforcing the letter of the law while leaving what they have been accustomed over the past 70 years behind. This needless to say puts significant importance to broaden the ability to understand theoretical background of North Korean family law and legal terms to increase efficiency toward the actual integration of South and North Korea.