이혼에 따른 재산분할의 기준시점-대법원 2023. 7. 13. 선고 2017므11856, 11863 판결을 계기로 삼아

Abstract

In a case concerning the division of property due to the dissolution of a de facto marriage, the decision in the subject case designated the date of dissolution of a de facto marriage as the reference date for determining and valuing assets subject to division, thereby upholding the traditional approach which has used the date of divorce as the benchmark even in the case of a de facto marriage. However, regardless of the type of divorce, it is in principle reasonable to use the date of dissolution for determining the assets subject to division, with the valuation of these assets based on the trial date. This approach should also consider special circumstances in light of the objectives of the division of marital property. The reasons are as follows. First, the reference period for property division should focus on substance rather than form. Division of property under Article 839-2 of the Civil Act mainly aims at liquidation and distribution of common property actually acquired during the marriage. The key issue is to set a reference date to prevent deprivation of the appropriate economic value to be shared by both spouses from one side or distribution of the appropriate economic value to be attributed to one spouse to both parties. Second, using the date of dissolution as the principal benchmark for determining the assets subject to division better reflects reality, promotes desirable hearing procedure, and leads to a more appropriate behavior. The subject of division of property pertains to assets acquired through the cooperation of both spouses, thus using the date of dissolution as the benchmark effectively excludes post-dissolution changes from marital assets in principle, unless there are special circumstances. This approach better reflects reality. Furthermore, it is desirable to focus on the “relevance to the marital relationship” rather than the “irrelevance to the marital relationship” when considering changes in property from the date of dissolution to the date of divorce or the date of trial. Third, the evaluation of assets subject to division is distinct from the determination of those assets. It is fair that simple gains or losses resulting from value fluctuations should be attributed to both parties. This is because the value of the determined assets is influenced by economic conditions and the supply and demand of the assets that are unaffected by the parties’ involvement. Particularly, when one party receives physical property and the other receives money, evaluating the property based on past values and then make payment of money according to current currency values can cause unforeseen damages to one party.