재산분할청구권의 포기약정에 대한 검토

Abstract

Divorce by agreement or the parties to a divorce in court may negotiate on property division (Civil Code, Article 839-2, Paragraph 1). The Civil Act does not stipulate any form or method for the discussion of property division between the parties, and the parties are free to consult, and one or both parties may agree to give up the division of property. In response, the court held that “a waiver agreement on the right to claim property division cannot be concluded before divorce is established, and furthermore, in order for the property division waiver agreement to be valid, the amount of property jointly formed by the parties, the contribution of both parties, and the method of division There should be a serious discussion about it.” As such, the court considers that the agreement on property division is effective only after the divorce is established (report of divorce), but the actual divorced party negotiates the division of property (including the waiver agreement) in the process of negotiating the divorce. This was reviewed from a critical point of view. Negotiation on the right to claim for division of property is a matter of a marital property contract and is a different matter from the right to claim for property division. Therefore, it is not necessary to equate the contract for the right to claim for division of property and the right to claim for division of property. A marriage contract must be possible even before a divorce is established, and in connection with the Marriage Property Relations Act, it must be possible before or during marriage. Negotiations on property division requests should also be negotiated before divorce in that it is a marital property contract. The most important thing in an agreement on the right to claim for division of property is the content of the agreement on division of property. First of all, the contract freely agreed upon by the couple according to the principle of private autonomy must be respected. However, inequality that may arise in the process of agreement on property division or its contents, or disadvantages borne only by one party, must be controlled by the court. According to the German Civil Code, the right to claim surplus liquidation takes effect from the time a lawsuit for divorce is filed in case of divorce, and under the Marriage Property Act, it is possible to enter into a property contract between the couple as well as to choose the marital property system during marriage. A waiver of claim is also possible. According to the German Civil Law, according to the principle of private autonomy, the marital property contract is primarily respected, but if the contents of the marital property contract are against good morals (Article 136 of the German Civil Code) or an abuse of rights (Article 242 of the German Civil Code) In this case, the court controls this in specific cases. In this paper, the implications of German law and Korean law are presented while finding the interrelationship between German law and Korean law.