일본 민법상 배우자거주권의 국내 도입에 관한 연구

Abstract

Korea and Japan are expanding minimum livelihood support through welfare policies by the central and local governments, such as basic pension for elderly people over a certain age, but additional welfare policies on housing problems have not been provided. In this respect, in the revised Japanese Civil Code it was established the right for a surviving spouse(widow or widower) to live for a short or long term after the death of his or her spouse in the house which the surviving spouse has been residing owned by the deceased spouse. The spouse's short-term residence right is a system that guarantees a short-term residence for the dwellings owned by the heirs where the surviving spouse has resided at the initiation of inheritance until the ownership is settled. And the spouse's long-term residence right is a right similar to a loans for use or leases that a surviving spouse can use the house for life or a certain period of time for free. In Korea, as the aging phenomenon is accelerating, it needs to consider actively the introduction of spouse's residence right, as the proportion of elderly parents not living with their children who have been married is increasing. While previous domestic studies on spouse's residence rights have mainly focused on introducing the contents of Japanese revised civil code, this paper is trying to examine the possibility of legislation in the civil code and the conformity to the civil code, the civil enforcement act and the precedents of Supreme Court in Korea. The legal issues regarding spouse's residence right in Korean legal system are as follows. Whether to consider the legal nature of spouse's residence right as real right or as legal claim, how to establish the requirements, duration and effectiveness of spouse's residence right, the problem of how the right will be treated in civil enforcement procedures, and the legal relations concerning the joint ownership with surviving spouse and joint heirs when the spouse's residence right is established, etc. In this paper, I reviewed the relationship with domestic law on these issues and tried to propose legislative opinions in case of necessity.