미국의 부부재산계약 제도에 나타난 자율과 후견의 조화 ―혼인 중 계약을 중심으로―
Harmony of autonomy and paternalism in the US marital property contract system: Focusing on the marital contract
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Korean civil law also regulates marital property contracts in Article 829, but their contents are very poor, and in reality, marital property contracts are rarely used. As a result, the development of the law on marital property contracts is very slow. There is also a problem that a couple’s property contract on the ratio of property division becomes ineffective due to a case law that states that martial contract is not allowed during marriage or that it is impossible to give up the right to claim property division in advance. This paper aims to deepen and expand the discussion on the marital property contracts in Korea through analysis of the contents of the US state and model law and the process of change. In the case of Korea, the view of marriage and protection of the underprivileged is stronger than that of private autonomy or contract freedom, as can be seen from the precedent of the fact that it is impossible to give up the right to claim property division through the marital property contract. However, the debate and experience in the United States concerning the preferred discipline of premarital and marriage contracts suggests that legislation and interpretation need to be extended to extend the principles of private autonomy. The reason for this is as follows. First of all, there is a growing demand for individuals to autonomously establish property relationships between couples. Second, it is worth noting that the need for paternalism is decreasing. Third, we cannot but point out the abandonment of paternalism. Nevertheless, * Associate professor at Wonkwang University Law School & a member of New York Bar. there are certain limits to emphasizing the principle of private autonomy in marital property contracts. Introducing written attention to a couple’s property contract or requiring the assistance of a lawyer can alleviate the problem of limited rationality, and imposing an obligation to provide information, particularly property disclosure, is a means of resolving the problem of incomplete information. Getting help from a lawyer may alleviate the problems caused by negotiating power gaps. Standard contracts may help to prevent unlawful and irrational marital property contracts.
Abstract
Korean civil law also regulates marital property contracts in Article 829, but their contents are very poor, and in reality, marital property contracts are rarely used. As a result, the development of the law on marital property contracts is very slow. There is also a problem that a couple’s property contract on the ratio of property division becomes ineffective due to a case law that states that martial contract is not allowed during marriage or that it is impossible to give up the right to claim property division in advance. This paper aims to deepen and expand the discussion on the marital property contracts in Korea through analysis of the contents of the US state and model law and the process of change. In the case of Korea, the view of marriage and protection of the underprivileged is stronger than that of private autonomy or contract freedom, as can be seen from the precedent of the fact that it is impossible to give up the right to claim property division through the marital property contract. However, the debate and experience in the United States concerning the preferred discipline of premarital and marriage contracts suggests that legislation and interpretation need to be extended to extend the principles of private autonomy. The reason for this is as follows. First of all, there is a growing demand for individuals to autonomously establish property relationships between couples. Second, it is worth noting that the need for paternalism is decreasing. Third, we cannot but point out the abandonment of paternalism. Nevertheless, * Associate professor at Wonkwang University Law School & a member of New York Bar. there are certain limits to emphasizing the principle of private autonomy in marital property contracts. Introducing written attention to a couple’s property contract or requiring the assistance of a lawyer can alleviate the problem of limited rationality, and imposing an obligation to provide information, particularly property disclosure, is a means of resolving the problem of incomplete information. Getting help from a lawyer may alleviate the problems caused by negotiating power gaps. Standard contracts may help to prevent unlawful and irrational marital property contracts.
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