재산분할청구권의 법적 성격에 관한 재검토 = Reexamination to the Nature of Property Division on Divorce in Korea

다국어 초록 (Multilingual Abstract)

Korean Civil Law holds separate property system that each marital partner owns and controls property he or she owned before marriage and acquired by him or her during the marriage through personal earnings, gift, inheritance, etc. Until 1990, Korean Civil Law adhere to pure separate property system that does not approve to divide marital property acquired during marriage by spouses` joint efforts. Revised Civil Law Article 839-2 provides the right of claim for division of property on divorce, in 1990. The Provisions of Article 839-2 are as followings; (1) One of the parties who have been divorced by agreement, may claim a division of property against the other party. (2) If no agreement is made for a division of property as referred to in paragraph(1), or if it is impossible to reach an agreement, the Family Court shall, upon a request of the parties, determine the amount and the method of division, considering the amount of property acquired by cooperation of both parties and other circumstances. (3) The Claim for division of property as referred to in paragraph(1) shall be extinguished after two years have passed from the date of divorce. The Provisions do not provide, what properties may be divided, or the amounts and the method of division on divorce. So, in a academic area, some argue the nature of the right of claims for division of property is only to divide the property acquired by spouses` joint efforts after marriage. And others argue that division of property acquired by spouses` joint efforts after marriage and supporting fees after divorce, should be included to the nature of the right of the claims. This paper insists that division of property acquired by spouses` joint efforts after marriage, or supporting fees after divorce, are elements to consider property division on divorce. And, the purpose of property division on divorce, is to maintain impartialness of the spouses after divorce, attaching weight to divide of property acquired by spouses` joint efforts after marriage may be contrary to purpose of the distribution of property on divorce. So, in making property division, this paper insists that the duration of the marriage, the age, health, station occupation, amount and sources of income, vocational skills, estate, the needs of each of parties, etc.