사실혼이 일방의 사망으로 해소된 경우생존 사실혼 배우자의 보호방안 - 상속권 및 재산분할청구권 인정 여부를 중심으로 -

Abstract

This paper is the research about the way of protection for surviving spouse when de facto marriage is terminated for the death of one cohabitant, socially an issue recently. About matrimonial property achieved for the cooperation of parties during putative marriage, the liquidation of matrimonial property relation is reached because the right of division of matrimonial property has been acknowledged when de facto marriage relation has been annulled in life, according to Civil Act and the Korean Supreme Court. But, the cohabitant could not demand the division of matrimonial property when the other cohabitant had died. This is contrasted with the acknowledgement to the right of division of matrimonial property when legal marriage has been annulled for divorce, and with reaching of the liquidation because the right of inheritance has been acknowledged when it has been annulled for death. Ultimately, the protection for surviving spouse is the matter of whether it’s the acknowledgement of the right of inheritance or the right of division of matrimonial property when de facto marriage is terminated caused by the death of one cohabitant. Both the right of inheritance and the right of division of matrimonial property are possible to be the legislation because of their common ground: the function of liquidation. But de facto marriage doesn't acknowledge the right of inheritance even though legal marriage does. Thus, heirs actually has no choice but to think the property of cohabitant’s share benefit unfair. It is accordant to balance that the way of liquidation is provided in order that the property of surviving spouse of de facto marriage can belong to him or her. In my view, the best protection is to extensively apply the application scope of the right of division of matrimonial property. The amendment of civil law is required for this. For such aims of this paper, it contains the examination about the way to protect the surviving spouse when de facto marriage is terminated for the death of one cohabitant. Eventually, it raises a suitable legislation to protect surviving spouse of de facto marriage.