사법 : 혼인주택이용권의 법적 근거에 관한 소고 -독일법을 중심으로-|RISS 상세보기

다국어 초록 (Multilingual Abstract)

Matrimonial residence is the basis of family life. It is of particular importance to family members as compared with other properties. Even when the title to the residence belongs to one of the spouses, the other spouse`s interest to its use and maintenance remains the same. The living in the residence of the non-owner spouse and children have to be secured against an unilateral disposal by the owner spouse. However, in view of the property law dogma, the spouse who has the title thereto might wish to dispose of it in the market without any restriction like his other properties. The German system shows a clue on how to approach in this regard. In Germany, the legal basis of a non-owner spouse`s living in the matrimonial residence derives from the obligation to marriage life as stipulated in §1353 in the Family Book of BGB. The spouse`s duty of cohabitation resulting from this provision entitles the non-owner spouse the co-occupancy of the matrimonial residence. The remarkable aspect of the German system is that the co-use of the residence is treated as a matter of family law, while its nature is defined by the property law, i.e. as a co-occupant, and not as a co-owner. The title to the property remains unchanged. In Korea, the matrimonial residence is treated much the same as other properties. Sometimes, the court grants a lease of the former residence to a divorced spouse, but it is considered only as one of the measures in distributing the properties between the former spouses, hence as no more than an adjustment technique within the sphere of the family law. However, this function of a lease which makes it possible for the non-owner spouse to assert his occupancy against a third party should be treasured. Legal ground of right to use of matrimonial residence is general effects of marriage. In the Korean Civil Code, article 826(1) said "Husband and wife shall live together and shall support and aid each other".

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참고문헌 (Reference)

1 山口純夫, "西ドイツにおける夫婦財産制の展開(一)" 甲南大学法学会 14 (14): 1978

2 右近健男, "婚姻法および家族法改正のための第一法律草案理由仮譯(一)(二)" 大阪市立大学法学会 19 (19): 1972

3 宮本ともみ, "夫婦による婚姻住居および家具の利用關係―ドイツにおける占有關係としての捉え方―" 中央大学 104 (104): 1998

4 常岡史子, "ドイツ民法典への强制的民事婚と有責主義的離婚制度の導入. in: ドイツ民法典の編纂と法學" 九州大學出版會 1999

5 常岡史子, "ドイツの附加利得共通制における處分制限規定(3完)―その日本法への示唆―" 108 (108): 1993

6 常岡史子, "ドイツの附加利得共通制における處分制限規定(3完)―その日本法への示唆―" 108 (108): 1993

7 常岡史子, "ドイツの附加利得共通制における處分制限規定(2)―その日本法への示唆―" 108 (108): 1993

8 常岡史子, "ドイツの附加利得共通制における處分制限規定(1)―その日本法への示唆―" 108 (108): 1993

9 Bauernfeind, "Zweckgemeinschaften im Bereich ehelicher Lebensgemeinschaft-Haushalt, Wohnung, Kind-auf der Basis einvernehmlicher Entscheidungen der Ehegatten" Regensburg 1984

10 "Zusammenstellung der gutachtlichen Aeußerungen zu dem Entwurf eines Bürgerlichen Gesetzbuchs, Band 4." 1890