재산분할청구권의 포기약정에 관한 소고

Abstract

The spouses can claim for division of property on divorce. With a divorce, a marriage and all the legal relations (rights and obligations) given by the marriage are terminated. And, a settlement of the parties’ economic affairs that have accumulated during the marriage is required, with consideration for a calculation between the spouses and also a support fee after the separation. The Korean Civil Act provides the claims for division of property on divorce, irrespective of its procedure, divorce by mutual consent between the spouses or judicial divorce by the Family Court (article 839-2, 843). At first, an agreement between the parties determines the amount and the method, with regard to the dividing a marital property (article 839-2 ②). This agreement means a mutual consent between spouses already divorced, or, intending spouses in anticipation of their divorce. If one of the spouses expresses his/her intention to renounce all the claim for division of property on a process of the mutual consent, his/her intention to renounce the claim for division of property on divorce can be treated as the contents of the spouses’ contract. In the academic circles, it is undoubtedly true that there has been no animated discussions, with regard to the ways how to deal with the give-up intention or the mutual consent. Meanwhile, the Supreme Court of Korea has settled many disputes relevant to the intention or the agreement, to renounce the claim for division of property, with a series of decisions. Under the thorough examination of a series of decisions of the Supreme Court concerning the agreement to renounce the claim for division of property on divorce (including the give-up intention expressed on the discussion process), I came up with a conclusion that the agreement should be treated as valid on the ground of the freedom of contract. I don’t agree with the decision of the Supreme Court, held that an agreement concerning the claim for division of property before divorce is generally invalid (2002Meu1787·2002Meu1794·2002Meu1800, decided March 25, 2003). Under this judicial interpretation, an effectiveness of the agreement is generally conditioned by the time when it is made. But, I think this is not persuasive on various reasons. A give-up of the claim for division of property means a promise, showing a intention not to ask the division of property in the future. However, the freedom of contract is commonly accepted as general rule. Based on this, I think an agreement to renounce the claim for division of property on divorce should be accepted as valid generally. Sometimes, we may be faced with some interpretative problems. In that cases, a using the general principles, such as the rule of a contract formation and a declaration of intention, the judicial regulation of violations of public(social) policy, the principle of trust and good faith, etc, may be very helpful to settle the disputes.