이혼 재산분할 제도의 개선방안 ―분할대상과 분할비율에 관한 개정의견을 중심으로―

Abstract

The right to claim property division upon divorce was introduced by the revision of the Civil Act in 1990. The purpose of the property division upon divorce is to achieve substantial equality between the spouses not only during the marriage but also after dissolution of the marriage by distributing property appropriately and equitably when marriage is dis- solved. In the property division trial, a conclusion is drawn through the process of calculating the property subject to division and determining the division ratio, so the judgment on these two issues is decisive for the appropriate property division. Though the law should be able to provide legal principles for the two issues, the current statute does not provide predictable standards. Therefore, it is necessary to revise the Civil Act to clearly define the property to be divided and the ratio of division. According to the case law regarding the property subject to division, the court can order division of substantive common property, that is the property formed through the cooperation of both spouses, regardless of the name of the owner. Even the inherited property and gifts can be in- cluded in the property subject to division if the other spouse contributed to its maintenance or prevention of its reduction. The current proposed revision of the Civil Act stipulates that common property and the property based on the common property are subject to division. There may be many other ways to define property to be divided in a way that is consis- tent with the people’s legal opinion and provides clear standards. As such, I present two methods. First, for couples who have been married for more than a certain period of time or have several common children, all of their assets can be considered as property subject to division. Second, in principle, it is possible to consider the property set by the parties in the marital property agreement as the property subject to division, and if there is no such agreement, all of their assets may be considered as property subject to division. Currently, the law does not stipulate any division ratio, so the court sets the division ratio for each case. But considering the nature of the marriage system, it is reasonable for the law to declare equal division as a principle. However, exceptions need to be granted to doing equal divi- sion. Proposed revisions of the Civil Act both past and present stipulate that common property is divided equally, while each spouse’s own prop- erty acquired by inheritance or as such is not. We can also modify the principle of equal division in other ways. For example, we can choose a way that the residence for marriage cohabitation should be divided equally, while the rest can be divided differently. Alternatively, the law can require the spouses to set the division ratio by marital property agree- ment, and if there is no such agreement, to divide the property equally. If the law is revised to set a uniform standard about the property divi- sion in case there is no agreement, it will be necessary to improve the marital property agreement system more convenient and reliable for the spouses who want to form their marital lives according to their own will.