채무만을 대상으로 한 재산분할 - 대법원 2013.6.20. 선고 2010므4071,4088 전원합의체 판결 -

Abstract

The Claim for division of Property is an institution created by revisingCivil Code in 1990. What exerts its own abilities is the case that have toconsider housework as an economical labor. Its purpose is to ensure thegender equality and the freedom of divorce by complementing the separateproperty system and evaluating the housework justly in the reality thatwives engage in housework, and husbands in economical labor mostly. However, the social position of wife is very low at that time in 1990 andthe property is under the name of husband. So the focus is only on thedivision of property of husband when they are divorcing. But, a lot arechanged things lately. Like this verdict, the separate property system isconfronted by new reality: not only the situation about husband who iseconomically incompetent and wife who is economically competent, but alsothe division of negative wealth - ‘debt’. It is the verdict that husband filed a lawsuit for divorce to his wife. Init, it is an issue that whether the debt under the name of wife used forher husband can be the list of division of property or not. After thesettlement for demanding the division of property, the amount of the negativewealth exceeds that of active property - ‘(positive) property’. Among eachkind of property, husband has active property a little but his wife hasconsiderable negative wealth. Until now, the Supreme Court judges that demanding the division ofproperty from wife shouldn't be accepted because there is no propertywhen it deducts the amount of property value from that of debt. But this verdict judges that the case about distribution of debt is also accepted. The intent of this judgement is valid because this judgement correspondsto the object of the Claim for division of property and the idea of fair. But it has an aspect that specific ways to distribute the debt are hard tocorrespond with the Civil Code. Discussing is proceeded in the order ofthese procedure: legislation case about division of debt, sorts of debt whichis an object for dividing property, debt as an object for dividing property,and deliberation about judgement.