재산분할과 특유재산―미국법의 소개를 중심으로―

Abstract

According to the precedent, separate property can be divided if the partner of the owner contributed directly or indirectly to acquire or maintain it by homework, even when it is an inherited property or a property acquired in exchange of the inherited property, and the same applies to the property donated by a third party. However, it runs counter to the ideology of the separate marital property system and makes it difficult for the parties to predict the result of the trial. It is not desirable to open up the possibility of division for business property in particular, because domestic dispute between the married couple results to an excessive economic impact on the existence and operation of the company. This paper is written for introducing the scope of property subject to division under the U.S. equitable property division system, and demonstrating based on the comparative law research that a property inherited or gifted as well as its variants and increases in value should not be divided unless it is transmuted to mixed property or it falls under the category of active appreciation.