死亡에 의한 事實婚의 解消와 財産分割의 類推

Analogy of the Division of Matrimonial Property at the Termination of de facto Marriage by Death

  On march 24, 2006 The Korea supreme court declared that the surviving spouse of de facto marriage could not have the right of division of the matrimonial property, when the other spouse is dead, since the surviving spouse of legal marriage has no such the right after the other spouse’s death. According to this decision, the surviving spouse of de facto marriage meets with difficulty after the death of the other spouse, because she(he) could not claim a right to inherited property. This is very unfair taking into consideration that the spouse of de facto marriage has the right of division of the matrimonial property at the divorce of de facto marriage during the other spouse being. But according to my study and survey on the Japanese cases and theories, the surviving spouse of de facto marriage should have the right of division of the matrimonial property, not only the occasion of the divorce during the other spouse being also the occasion of the spouse dead, in spite of the criticism that such conclusion be contrary of system of Korean Civil Law.