부부재산제의 과거, 현재, 그리고 미래 ― 일본민법과의 비교를 중심으로 ―

Abstract

The provisions on the matrimonial property system in the Korean the Civil Law apply to a married couple unless otherwise specified in a premarital agreement signed by the couple (Article 829 of the Civil Law). This article overviews the history and theories of the property system in the Japanese Civil Code, as it is regarded as the most similar to the matrimonial property system in Korea. The social perception of marriage may vary depending on the time and social situation, which makes it difficult to clearly grasp the public’s general preference for the marital system at a given time. However, it may be possible to derive such preference from social perception surveys utilizing relevant statistics. When we take a look at similar survey findings and statistics in Korea, we find out that, in the 1960’s when the first Civil Law was enacted, average Koreans married in their 20’s and stayed married for around forty years, and wives were not actively engaged in economic activities in general. Today, on the other hand, the marriage rate is declining while the divorce rate is increasing along with the remarriage rate. These stark differences between the two periods warrant a question; are the marital property relationship in those two periods the same? This eventually leads to the question of whether to uphold the social value that comes from a couple’s joint pursuit of communal life through marriage, or leave decisions on matrimony and the dissolution thereof to each individual’s free judgment. It should be noted that, unlike the past, marriage today is widely considered a contract that establishes a human community between men and women, and such a community can be freely established and dissolved based on individual affection. That is, ‘merger and succession of families’ is no longer emphasized in the marriage context. Therefore, with regard to spouses or children in need of economic support during marriage, it is necessary to grant them a way to file claims for support fees and have those claims executed with meaningful results, promote meaningful property division in case of divorce or find a way to increase a spouse’s inheritance. In particular, for couples in de-facto marriage where one of the spouses is reluctant to form a matrimonial property relationship and postpones or rejects marriage registration, it is necessary to adopt protective measures for the other spouse and their children. The 2020 bill to the Civil Law can be regarded as part of the continuous efforts to address economic inequality within married couples through the law. However, as one finds out, the bill contains provisions that are difficult to adopt without fundamental changes to the legal doctrine on change of real rights or the disclosure method thereof. The adoption of the bill is expected to face difficult challenges in terms of transaction safety. Therefore, the matrimonial property system under the Civil Law should be interpreted in a way that allows only the minimal level of solidarity required for the support of the married couple, so as to ensure that the interpretation is based on freedom of marriage but does not infringe on the safety of transaction.