재산분할에 있어서 소극재산이 적극재산을 초과하는 경우

Abstract

If a spouse incurred debt while accumulating family assets or taking care of household affairs, both spouses ought to divide the debts at divorce. Normally, the total value of all debts is deducted from the sum of the marital assets. However, what if the former exceeds the latter? Widely conceived answer from the Supreme Court today is that neither debts nor assets division shall be allowed in such a case. In this paper, a different answer is suggested. In two cases concerned, the plaintiffs had only assets while the defendants had debts exceeding assets. Therefore, it is unlikely that the Supreme Court will make the same decision in the case when the plaintiff’s debts exceed his or her assets while the defendant’s assets exceed his or her debts. This paper proposes that the equal division of property should include the division of both assets and debts even in such a case. Thus, after spouses divide assets, if one spouse (plaintiff) can’t get out of debt or still has excessive debts, the other spouse (defendant) should assume the responsibility for certain portion of the remaining debts. Bases for debts division as well as effects, practical benefits, and potential problems of the debts division are studied in this paper.