이혼에 따른 재산분할심판에서 당사자 간 일부 재산분할 합의의 소송상 효력 ―대법원 2013.7.12. 선고 2011므1116 판결과 관련하여―

Abstract

The Supreme Court Decision 2011meu1116 rendered on July 12th, 2013 decided that the court is not bound by the parties’ partial division agreement on certain assets and does not need to divide those assets as agreed upon by the parties, as the division of property case is non-contentious and thus principle of ex officio examination by the Non-contentious Case Litigation Procedure Act shall apply mutatis mutandis to it. However, a division of property should be by agreement between parties, and only if no agreement is made the Family Court shall determine the amount and method of division. A partial agreement as well as an agreement on the entire property is valid. If an agreement has been made on certain assets, a party’ request to divide the assets should be dismissed, and the party can file a civil claim based on the agreement. Therefore, if a partial agreement on certain assets has been made before or during the Family Court’s division procedure, the court should not order ex officio the division of the assets disregarding the parties’ agreement, and the claim on the certain assets should be partially dismissed. In my view, the court’s decision that the court may disregard the parties’ division agreement on certain assets and divide them ex officio should be reconsidered and the parties’ own agreements should be respected.