사실혼 해소로 인한 재산분할시 재산가액의 산정시점 - 독일과 일본의 사례를 참고하여 -

In the case of de facto marriage, Article 839-2 of the Korean Civil Code(KCC) on the right of divorce spouses to claim property division shall be applied by legal analogy. In order to determine the specific amount of the property to eb divided, it is necessary to determine the property subject to liquidation and to determine the timing of evaluating its economic value. In the case of divorce of legal marriage, in principle, the court determines the property subject to liquidation and evaluates the value at the time of divorce but also takes into account other special circumstances. However, in the case of divorce of de facto marriage, the timing of determining the property subject to liquidation and evaluating the value is unclear, so there are many practical difficulties in determining the property subject to liquidation and the timing of evaluating its value. When divorcing de facto marriage. In order to find a solution to these problems, this paper examined domestic theories and precedent cases on the purpose and function of the right to claim property division, the basis and consideration factors of property division at the divorce, the property subject to liquidation and the timing when the value is determined. For comparative legal reference, I attempted to derive implications by examining the Japanese literature and precedent cases that recognized the right to claim property distribution, as well as the rules of liquidation of property at ending unmarried cohabitation in Germany. Based on the knowledge obtained through such a series of research studies, some my opinions were added in lieu of the conclusion as follows. Comparing the cases of Korea and Japan, it is common that the family court is recognized to have considerable discretion to carry out the above common standards in accordance with specific circumstances, while in principle taking the time of divorce or separation as the standards In addition, it is the same that these standards are applied in principle to de facto marriage (or unmarried joint living relationship). However, in Germany the end of the marital property system (or the filing of a divorce lawsuit) is taken as the standard. In Germany, for de facto marriage, a claim for division of property equivalent to the claim at the divorce of legal marriage is not recognized and processed according to property law, so the preconditioned legal situations are different, so it is limited for direct reference. In order to approach this problem, it needs to be examined from the perspective of what is the basis for the right to claim property division and what method is fair (or makes the parties in the dispute feel fair). If the interest relationship as an economic community or similar economic solidarity remains or the divorce spouse’s abstract and potential stake is assumed until the property relationship is liquidated, the profits and risks of accidental price changes before the actual liquidation is completed are still to be shared among the spouses. Considering the premise of considering the basis for supporting after divorce (solidarity of marriage or frustration of support expectations), it is necessary to consider all circumstances until the time of division, as in Japan, so if the standard time for assessment of the value of the property subject to division is the time of court decision about division, there is no problem in considering both liquidating and supporting factors in the request for division of property. Even if the time of determination of the property subject to division is at the time of divorce or de facto marriage, it is appropriate to assess its value at time of the ending of the hearing of the division trial closest to the actual division.