재산분할의 본질과 재산분할청구권의 상속성

Abstract

The right of claim for the division of matrimonial property is the right of arranging the matrimonial propertyafter divorce. Through the drastic reform of the Code of Family Law in 1990, it has established such rightunder Article 839.2. Under the Article, a divorced person by mutual agreement may claim for the division ofmatrimonial property against another(Section 1). However, if a divorce agreement has not been reached, thecourt, through the claim of either party, may determine the amount and the means of division by taking theamount of property that the parties have jointly achieved into consideration(Section 2). This right, however,ceases to exist after two years of divorce period(Section 3). Moreover, Article 839.2, as an effect of a divorceagreement, is applied in both cases of judicial divorce(Art. 843) and voidable marriage(Art. 2.1 of the Code ofHousehold Affairs Procedure). And the Article has also been applied in cases of putative marriage by theprecedents. Basing such right on the separate property system, the property of one’s own before marriage and theproperty acquired by one’s name are classified as a unique property under Art. 830 Sec.1. This Article removesan unreasonable outcome that has been emerged in our tradition where the property built by the cooperation ofboth husband and wife is mostly acquired under the name of husband and, thus, where wife’s contribution hashardly been taken into account. Moreover, the Article practically guarantees the freedom of divorce byproviding for an economically incompetent spouse. Thus, the Article tends to materialize the equality of bothgenders by allowing the right of claim for the division of matrimonial property, irrespective of the fault of aclaimant. The legal nature of such right has been roughly divided into two: liquidation theory and liquidationsupportingtheory. And the liquidation-supporting theory is currently a majority opinion which understands theright of claim for the division of matrimonial property as a right that has both the eliminative nature ofacquired property and the supportive nature of economically incompetent spouse. Regarding to the nature of the right of claim for the division of matrimonial property, our case law providesa number of positions which lead to some ambiguitiesHowever, some problems may arise on the discussion of inheritance of such right in both practice andtheory, if a majority opinion and the court include the supportive nature as one of the elements of the right ofclaim for the division of matrimonial property. Our theories, by and large, have tendencies to accept inheritance in cases of a rightful person passing awaybefore receiving the property, if either parties had agreed to divide the property or the court had determinedthe practical amount of such division. However, although we approve the right of inheritance in these cases, ifwe understand such right as not only eliminative but supportive, the value of property has to be distinguishedinto two natures at least. Moreover, our precedents do not make such distinction. In other words, withoutconsidering the two elements, the court only divides the property as a whole or individually according to itstypes in a fine ratio. Thus, it is necessary for a court to distinguish the amount in each element when thecourt decides that the right contains the nature of maintenance. If not, a rightful person is dead or presumeddead after the concrete scope of division property has been set up, it may be difficult to resolve the problemof inheritance. In my view, it is theoretically and practically difficult to clarify the legal nature of the right of claim for thedivision of matrimonial property and to determine the clear amount of such division. Hence, to relieve thissituation, it is more appropriate to understand such right as the liquidation of matrimonial-property relationexcluding the element of maintenance. Moreover a right which is strictly personal to the obligor in terms of its exercise is deferent from a rightwhich is strictly personal to the obligor in terms of possession and the exercise of the former should not affectin its inheritance.