이혼시 반려동물의 귀속에 관한 법적 고찰

Abstract

As the number of people raising pets increases, there are various problems surrounding companion animals. Recently, as the number of people raising pets as children or family members in Korea is increasing, people's perception of pets is changing. Due to this change in perception, the subject of discussion related to companion animals is also expanding. As perceptions change, the topics of discussion related to companion animals are also expanding. Considering the number of people who own pets, the probability that a divorced couple is raising a pet is also very high. When a couple who owns a pet divorces, there is a high probability that issues will arise regarding ownership of the pet and how to determine who will have custody. Currently, korean civil law is a norm for people. Civil law aims to regulate legal relations centered on the protection of rights holders. People treat animals as objects, and animals become objects of gift contracts, sales contracts, delegation contracts, and bailment contracts. Considering these points, it seems reasonable to view the legal nature of animals as objects. Therefore, companion animals are animals under current law, and in principle, they are subject to property division when a couple raising companion animals divorces. Nevertheless, the number of people who want to recognize and treat their pets as family or family members is increasing. Considering that animals have life and, in the case of companion animals, are treated as objects of affection and welfare through emotional bonds with the owner or guardian of the pet, etc., it is reasonable to recognize their special nature compared to general objects at least when it comes to companion animals. Therefore, when determining the owner or custodian of a pet in the event of divorce, the pet is treated as a special object. It is necessary to approach this from the perspective of who owns a pet, which is beneficial to both the divorce parties and the pet. If so, there is no choice but to resolve issues surrounding pets in the event of divorce according to the new standards for determining the owner and custodian of pets. At present, there are bound to be limitations in presenting and applying the interpretation theory due to reasons such as limitations in the current law and the absence of an interpretation theory in precedents. Accordingly, it seems necessary to seek to protect the lives of animals, ensure their safety, and promote their welfare by establishing standards for resolving these disputes through a legislative approach, and to seek ways for the harmonious coexistence of humans and animals. It would also be possible to approach the establishment of such dispute resolution standards through legal revisions limited to necessary areas in the short term. Also, in the long term, it would be possible to enact a special law related to animals or companion animals that can encompass animal-related issues from the perspective of animal welfare and protection.