부부재산관계에 대한 검토 - 부부공동생활의 실태와 새로운 부의 창출에 대응하여

Abstract

The treatment of marital property deals with the regulation of the ownership and management of the spouses. The values of marital property law are community, autonomy, and equality. During marriage,property belongs to the spouse who acquired it, according to the Korean marital property regime. But most marital properties have been acquired, preserved, and improved by the efforts of both spouses on each spouse's property. So most spouses make joint management,control and the decision about their marital properties in reality. Where one of the spouses fails seriously in his or her duties and thus imperils the interests of the family, the family court should forbid that spouse to dispose of his or her own property. The separate property regime at times resulted in unjust marital property distributions at dissolution of the marriage, especially involving cases of the traditional families where most properties were titled in the wage-earning husbands. The flaw of the separate property system is not only that it will occasionally ignore the financial contributions of non-title holding spouse, but also that is unable to take account of a spouse's non-financial contributions. So Korean court adopted the deferred community system by the judicial decisions, using the typical definitions of community property system. It may exemplify the judicial activism. But it need not to distinguish the marital property and non marital property to divide the marital properties. Korean court has discretion on a case-by-case basis to determine the methods and amounts of marital property division to achieve justice, equity and peace of family. Korean law adopted the rule of reasonableness in marital property division. Many modern property rights, especially human capital does not have the attributes traditionally associated with property. In the context of the marital property division, we should respect the reasonable expectations of spouses by accepting the present interests of pensions and employee benefits, stock option, degrees, and goodwill. It may need the amendments of the concerned acts.