가사비송절차의 문제점과 개선방향

Non-Contentious Litigation Case in Family Litigation Act

Family Litigation Act, as a procedural regulation on family litigation, was enacted with the premise that family law matters are divided into contentious and non-contentious litigation cases. Property Division at Divorce, a familiar subject to us, is classified under non-contentious litigation cases. With respect to Property Division at Divorce, the Korean Civil Act contains very similar provisions to the Japanese Civil Act. However, even if the procedural aspect of such litigation governed by the Korean Family Litigation Act and the Japanese Family Litigation Act, appears to be similar regarding the substantial provisions, there are important differences between the two acts, which have been overlooked so far. Thus, it would be desirable to examine the differences between Korean and Japanese procedural rules and identify the impact of those differences on the interpretation and implementation of non-contentious litigation cases. By examining the structural differences and characteristics of the family litigation acts of Japan and Korea using an comparative law approach, this article wants to elucidate the necessity of our own theory of interpretation. Furthermore, this articles deals with the unreasonable aspects restricted in terms of res judicata, which may arise in caseof putting emphasis on the special nature of the following non-contentious litigation case. As an introduction to the characteristics of non-contentious family litigation cases, this article will not fail to examine the Japanese theory of interpretation and the court decisions in detail, however, its my major concern to make this article act as an impetus to the vital development of interpretation theories regarding the area of procedural law.