혼인은 과연 부부를 경제공동체로 만들어 주는가? ― 합유 제도에 대한 새로운 패러다임 제공 ―

Abstract

In South Korea, married couples are not treated differently from other groups centered around mutual interests. Although the Civil Code and case law recognize married couples as mental, physical, and economic communities, the Civil Code and other laws do not distinguish them from other economic communities consisting of two or more individuals. The Civil Code classifies the form of property ownership by groups of two or more individuals into co-ownership, partnership ownership, and collective ownership. Married couples are treated as two independent individuals who form the closest economic relationship while most firmly ensuring individual independence, and therefore their jointly owned property is regarded as co-owned. The form most suitable for the economic community of a married couple is closest to a partnership, but the Civil Code does not classify married couples as partnerships, thus denying their collective identity. If married couples were recognized as a partnership, their property could be registered as partnership ownership. This would strengthen the collective identity of the economic community through the following advantages: first, neither spouse could freely transfer or dispose of their share. Second, creditors of either spouse would not be able to collect debts from the couple’s joint property. Third, the disposal of property would only be allowed by mutual consent or upon the dissolution of the community. The economic community of a married couple is one where the individuality of each spouse is very limited, and transactions and inheritances between spouses should not be subject to taxation. However, unlike other developed countries, South Korea imposes gift and inheritance taxes on the property of married couples. High gift and inheritance taxes like those in South Korea result in the state, as a third party, owning part of the couple’s property through taxation. This reduces the wealth of the marital economic community, making it difficult to maintain their economic status. When the marital economic community is dissolved due to divorce or death, it is inequitable that capital gains tax is not imposed in the case of divorce, but inheritance tax is imposed in the case of death. While the legal treatment of married couples as an economic community is at the discretion of each country, the purpose of forming and maintaining such a community is largely consistent worldwide. Ensuring that the property owned by married couples is protected from the creditors of either spouse and limiting taxes on the transfer of property between spouses would provide better protection for the marital economic community. I propose introducing the system of joint ownership into the marital economic community by utilizing existing systems, rather than creating new ones. When the marital economic community is dissolved due to divorce or death, it is inequitable that capital gains tax is not imposed in the case of divorce, but inheritance tax is imposed in the case of death. The legal treatment of the marital economic community is at the discretion of each country, but the purpose of forming and maintaining such a community is largely consistent worldwide. Ensuring that property owned by married couples is protected from the creditors of either spouse and limiting taxes on the transfer of property between spouses would help secure the economic viability of the marital economic community. I propose not only efforts to abolish or reduce taxation but also to solidify the economic and collective nature of the marital economic community by utilizing the existing partnership ownership system.