민법 親族․相續編과 家事訴訟法의 交錯

The Complication of Civil Act and Family Litigation Act of Korea

Systematically speaking, the Part IV Relatives and the Part V Inheritance of the Civil Act of Korea, which is generally called as Family Law, are both very close relationship with the Family Litigation Act(FLA) as a substantive law and a procedures law ruling same field. From this reason, the FLA has many provisions following the Civil Act which have entered into force much earlier than itself, in spite of some exceptions. Several amendments of FLA after the enactment has made clearer relation between two Acts. But the exceptions still exist and those make some problems when applying provisions of those Acts to a real case. This essay has a purpose to urge the authorities to solve these inharmony. The body of this essay has three parts: First part is to indicate a problem that some provisions of FLA is filling up deficiency of the Family Law, which is estimated undesirable, for example, in the case of appointment of a special agent on the occasion of conflict of interest between a guardian and his ward, division of properties after the revocation of marriage, and appointment of a guardian for the child after nullity of marriage. Second part is to solve conflicts between two Acts, for example, in the process of decision of a guardian after the termination of a marriage and recognition of a child by the trial. Third and the last part is differences of interpretation, for example, on nature of the litigation confirming nullity of a marriage, on objects of conciliation, and on jurisdiction of inheritance.