재산분할청구권에 관한 소고

Abstract

Since Korean Civil Law has the article regarding claim for division of matrimonial property(839-2) in 1991, there has been considerable amount of papers and cases concerning this article. According Korean Civil Law, claim for division of matrimonial property is based on the article 839-2 but claim for consolation money with divorce is based on the article 843 and 806. And Korean Family Litigation Law classifies claim for division of matrimonial property as a family non-litigation case, on the contrary, claim for consolation money with divorce as a family litigation case. Moreover, one has a character of liquidation, the other has a character of compensation for damage. Therefore the two claims are independent from each other theoretically. But Korean Supreme Court does not confirm the relationship between these two claims. On the other hand, there was a partial reformation of Korean Civil Law in 2007. 12. 21. Among the reformation, there is a new article regarding a right to revocation to protect the claim for division of matrimonial property(839-3). This article aims to protect more substantially a spouse who does not hold the title of the matrimonial property. Without any agreement or final decision by court, Korean Supreme Court was not positive to accept a spouse’s right to revoke the other spouse’s act of disposal which reduced the matrimonial property before 2007. 12. 21. But with this new article (839-3), Korean Supreme Court could be more positive in accepting the right to revoke the other spouse’s act of disposal which is dangerous to the future right on the matrimonial property. Finally this paper suggests the probability of division of matrimonial property before divorce at some circumstances. According Korean Civil Law, a spouse can exercise a claim for division of matrimonial property only in case of divorce. But in some cases, for example, when a spouse does not support the other spouse, when a spouse dispose the matrimonial property and there is not sufficient property to divide at the time of divorce, the division of matrimonial property during marriage would be useful to the other spouse who wants the property and the duration of marriage at the same time.